Common-law marriage
Common-law marriage and the Law
Common-law marriage, also known as cohabiting when a couple lives together before marriage or civil partnership.
Contrary to popular belief, there is no such thing as a ‘common law marriage’. The assumption by many unmarried couples in a long-standing relationship that they have acquired rights like those of married couples is incorrect. Common law marriage or common law spouses no longer exists in UK law and hasn’t done since 1753!
Legally, cohabiting couples have no financial responsibility to one another if they separate and no legal responsibility to provide your former partner with financial support. Only with the advent of the Child Support Agency is there a financial responsibility on the father for his children.
Children, Property and Finances
Unmarried parents should plan carefully about what might happen to their children if they split up, or if one parent dies unexpectedly. Usually unmarried mothers automatically have parental responsibility for their children. Fathers do not automatically have parental responsibility for their children unless they are married to the mother. Unmarried fathers can get parental responsibility for their children by jointly registering at the birth having the fathers name on the child’s birth certificate.
If cohabitees live together, they may or may not have a declaration of trust setting out their respective shares in a property. In a long-term relationship, one party may have paid the rent/mortgage while the other paid the bills, but this will not make any difference in a civil court – it is all down to who paid what! There could also be arguments regarding furniture and possessions, this again will come down to which one purchased the possessions and have receipts to prove it. Arguments can be particularly acrimonious and costly!
Unmarried cohabiting couples have no automatic entitlement of inheritance if their partner dies without a Will including the family home, pensions, savings.
When one cohabiting partner dies without a Will, their surviving partner may be able to claim from their estate through the Inheritance (Provision for Family and Dependants) Act 1975 (‘the 1975 Act’). This can also be referred to as an ‘Inheritance Act claim’.
Top Tip: To protect yourself should you break up or the worse happen, you could consider a “cohabitation contract” with your partner to decide how finances and property should be divided. This can be drafted by a solicitor.
Conservative MP Tim Loughton is currently looking into how the law could be changed to even out this imbalance so that the opposite-sex couples can form a civil partnership as well.
Remember: A common law marriage = No Legal Status!