Common Law Marriage in the UK: The Truth

Common Law Marriage Does Not Exist

This is one of the most persistent myths in English law. There is no such thing as a common law marriage in England and Wales. Cohabiting couples, however long they have been together and however many children they have, do not acquire the same legal rights as married couples simply by living together.

What Rights Cohabitants Actually Have

Cohabitants have very limited financial rights on separation. Unlike divorcing spouses, a cohabitant cannot apply for a share of the other party's pension, cannot claim spousal maintenance, and has no automatic right to a share of property held in the other party's sole name. The financial remedies available to divorcing spouses simply do not apply.

Property Rights

Where a property is held in joint names, both parties have a share. Where it is in one party's sole name, the other party must establish a beneficial interest through a constructive trust or proprietary estoppel -- a complex and expensive legal argument. Having paid toward the mortgage does not automatically give a right to a share.

Children

The position regarding children is the same for married and unmarried parents. A mother automatically has parental responsibility. An unmarried father on the birth certificate has parental responsibility. The child arrangements framework and the welfare principle apply equally.

What to Do

Cohabiting couples who want to protect their position should consider: a cohabitation agreement setting out what happens if the relationship ends, a declaration of trust where property is held in sole or unequal names, life insurance and making a will. These steps can provide significant protection that the law does not automatically give.