Cohabiting couples are on the increase but a number of myths about ‘common law marriage’ have developed meaning that many couples are unaware of their legal entitlements, and research suggests two thirds of cohabiting couples wrongly believe common law marriage exists when dividing up finances upon separation.

What is the truth about ‘common law marriage’?

The name ‘common law marriage’ implies that cohabiting forms a similar contract with regard to legal privileges, but the term actually has no legal recognition. If an unmarried couple breaks up, even after decades of living together, there is no requirement for one to support the other financially or to split property.

The only exceptions to this are in Scotland, where some cohabitation rights are recognised, and in the cases of children where cohabiting couples can be expected to support their former partner in certain, but not all, circumstances.

Cohabitation has implications for home rental and ownership

If you don’t own or rent a home together, the partner who does own the property or who is named on the lease is the only one who actually has the automatic right to live there.

Although co-owning a home might seem like the solution, cohabiting couples can run into problems. One partner can’t sell the home unless the other one agrees and both parties will usually receive a 50/50 split of the sale regardless of who paid the majority of the mortgage, unless alternative arrangements are agreed at the time of purchase.

If you’re concerned about what your rights are in your living situation, speak with our divorce and separation solicitor Calum Whelan who will assess your circumstances and offer you confidential advice.

Calum says: ‘The law treats married and cohabiting couples quite differently, cohabiting couples have very little in the way of legal rights should they decide to split up. With those couples who choose not to get married, it is essential that they get the correct legal advice, I would recommend all cohabiting couples obtain a cohabitation or living together agreement, to protect themselves in the event of a relationship breakdown. If you would like to find out more about a cohabitation or living together agreement please give me a call’. Calum Whelan, Solicitor, Paul Crowley & Co. 0151 264 7363

Understand how cohabitation can affect your finances

Cohabitation can prove complicated when it comes to financial matters due to the fact that living together alone does not allow one party to claim ownership over the other’s assets. Anything an individual possessed before living together remains their own property, as well as anything they have gained in their sole name during the relationship, including pensions.

Cohabitation also has implications if one of the couple dies because it doesn’t offer the same protections as marriage. For instance, unless they are named in a will, an individual won’t inherit assets held in the sole name of their partner and will be subject to inheritance tax (if applicable). There are exceptions in which claims can be made, however, so it’s important to speak to a solicitor to seek legal advice.

Cohabiting vs. Marriage

The Citizens Advice Bureau has highlighted some important points that cohabitating couples need to consider.

Six ways your rights differ

If one cohabiting partner dies without leaving a will, the surviving partner will not automatically inherit anything – unless the couple jointly own property. A married partner would inherit all or some of the estate

An unmarried partner who stays at home to care for children cannot make any claims in their own right against their partner for property, maintenance or pension-sharing

Cohabiting partners cannot access their partner’s bank account if they die – whereas married couples may be allowed to withdraw the balance providing the amount is small

An unmarried couple can separate without going to court, but married couples need to go to a court and get divorced to end the marriage formally

Cohabiting couples are not legally obliged to support each other financially, but married partners have a legal duty to support each other

If you are the unmarried partner of a tenant, you have no rights to stay in the accommodation if you are asked to leave – but each married partner has the right to live in the “matrimonial home”

© Citizens Advice Bureau

A written agreement can give you peace of mind

One solution to some of the issues that can arise for unmarried couples who live together is to sign a written cohabitation agreement. This can cover a wide range of areas, such as joint bank accounts and any shared debt, whether that is utility bills, credit cards, or more.

Our experienced family solicitor’s will be able to provide this service, as well as being able to help you secure other legal protections, such as drafting or updating a will.

Calum Whelan is a member of Resolution. Resolution is the largest membership organisation for family justice professionals in England and Wales. Resolution members are committed to a Code of Practice, promoting a constructive non-confrontational approach, which results in better outcomes for families and children.


To speak with Calum or a member of our Family Law department call us on 0151 264 7363 or email us.

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