Common Law Marriage - Does It Exist In The UK?

The misconception of common law marriage in the UK often leads to confusion about the rights and entitlements of cohabiting couples.

These couples may believe that they are entitled to the same legal protection and benefits as married couples, but this is not the case.

In England and Wales, the law treats cohabiting couples as separate individuals with no special legal status.

Scotland, on the other hand, has a slightly different legal stance. Though common law marriage as such was abolished in 2006, there is recognition for what is termed as ‘marriage by cohabitation with habit and repute’, which can have some legal standing.

However, such cases are rare and require a couple to be cohabiting and generally recognised as husband and wife by the community.

Definition of Common Law Marriage in the UK

In the United Kingdom, the term “common law marriage” is widely misunderstood. Common law marriage does not hold any legal status in the UK.

Many believe that cohabiting couples who live together for a certain period of time acquire the same legal rights as married couples, but this is not the case.

A couple is often considered to be in a common law marriage when they live together and present themselves as husband and wife, yet this living arrangement does not confer any of the legal protections or obligations of a formal marriage.

To be clear:

• Cohabitation: Simply living together does not create any automatic legal rights, irrespective of the duration of the cohabitation period.
• Property Rights: Cohabiting couples do not have the same property rights as those who are married or in a civil partnership.
• Financial Support: There is no entitlement to financial support upon separation, unlike in the case of divorce.
• Children: Parents have financial responsibilities for their children but cohabitation does not confer parental responsibilities automatically.

Individuals in the UK may refer to their relationship as a “common law marriage,” but such unions lack the weight of law.

Couples seeking legal security comparable to marriage should consider formalising their relationship through marriage or a civil partnership or drafting a cohabitation agreement.

What Is The Legal Status of Common Law Marriage in the UK?

In the UK, common law marriage is not legally recognised, and cohabiting couples do not have the same rights as those who are married or in civil partnerships.

The term “common law marriage” is often used to describe a couple that lives together as if they are married without having gone through a legal marriage or civil partnership.

However, in legal terms, such an arrangement does not grant the couple any legal status as a married pair in the UK.

This misconception could lead to significant legal and financial implications for cohabiting couples.

Without the legal framework of marriage or civil partnership, individuals in a cohabiting relationship do not automatically gain rights to their partner’s property, pensions, or inheritance in the event of the partner’s death.

They also do not have the same tax benefits, state benefits, or next-of-kin status as married couples or civil partners.

Cohabitation versus Marriage

Couples who are married or in a civil partnership benefit from a range of legal protections and responsibilities that do not extend to cohabiting couples.

This includes the right to inherit assets and a share in the estate of a deceased partner, even in the absence of a will, under the rules of intestacy.

Cohabiting couples can take certain legal steps to protect their interests.

They may create a ‘cohabitation agreement’, which can outline the intentions regarding property and financial arrangements.

However, these agreements must be correctly structured to be considered in any potential legal disputes and do not provide the same comprehensive rights as marriage or civil partnership.

Common law partner vs civil partner

In the United Kingdom, the terms “common-law partner” and “civil partner” have distinct legal meanings and confer different rights and responsibilities:

Common-Law Partners:

• The term “common-law partner” is often used to refer to a couple that lives together in a long-term relationship similar to marriage but without having formally registered their partnership.
• There is no legal status as “common-law” marriage in the UK, and living together does not grant couples the same legal rights and protections as marriage or civil partnership, no matter how long they have been cohabiting.
• Cohabiting couples must take additional legal steps to protect their interests regarding property, finances, inheritance, and decision-making in the event of illness or death. This often involves creating wills, cohabitation agreements, and taking legal advice to ensure their rights are protected.

Civil Partners:

• Civil partnership is a legally recognized relationship between two people of the same sex (and, since 2014 in England and Wales, and later in Scotland and Northern Ireland, opposite-sex couples as well).
• Civil partners have the same rights and responsibilities as married couples in matters such as inheritance, tax benefits, pensions, and social security.
• Civil partners can acquire this status by registering their partnership through a formal process similar to marriage, which provides legal recognition and protection under the law.
• Upon the dissolution of a civil partnership, similar legal proceedings to divorce are followed, and the same considerations for the division of assets, maintenance, and arrangements for children are taken into account.

It’s important to note that while the term “common-law partner” is still used colloquially, it does not offer legal recognition or protection in the UK.

For cohabiting couples who want legal security and recognition similar to marriage, entering into a civil partnership or getting married would provide that status.

Financial Considerations and Property Rights

In the United Kingdom, common law marriage does not possess legal recognition, and as such, partners do not enjoy the same financial and property rights as those married or in civil partnerships.

Cohabitants must be aware of the limitations on their entitlements; in the event of a relationship breakdown, they are not granted the automatic right to property or support.

It’s crucial for partners to proactively manage financial matters, which may involve:

• Property Ownership: Ownership depends on whose name is legally on the deeds or tenancy agreement. Joint owners have shared rights, while sole ownership yields exclusive rights to the named individual.
• Joint Finances: Bank accounts and investments held jointly will usually be split equally unless stated otherwise in an agreement.
• Pension Claims: Cohabitants often have no right to the other’s pension.
• Inheritance: Without a will, a surviving cohabitant has no automatic inheritance right.

Mitigation Strategies to consider:

• Cohabitation Agreement: Legally outlines the intentions for property and finances.
• Property Declaration of Trust: Spells out individual contributions and shares in property.
• Wills: Essential to ensure assets are inherited as desired.

Financial considerations between non-married partners can be complex. You should seek to mitigate risk and ensure peace of mind, especially when buying a house with your partner.

They should seek legal advice to safeguard their interests and establish clear arrangements for their shared and individual assets.

Children and Parental Responsibilities

In the UK, common law marriage does not legally exist; therefore, cohabiting couples do not have the same legal rights as married couples. When it comes to children, the responsibilities and rights of parents remain paramount, regardless of the parents’ marital status.

• Unmarried Fathers: For children born after 1 December 2003, an unmarried father can acquire parental responsibility by being registered on the birth certificate, jointly registering the birth with the mother, having a parental responsibility agreement with the mother, or obtaining a parental responsibility order from a court.
• Unmarried Mothers: Mothers automatically have parental responsibility from the child’s birth.
• Child Arrangements: Parental responsibilities include providing a home for the child, and protecting and maintaining them.

Should the relationship between the parents end, decisions regarding whom the child will live with, and the contact with the non-resident parent, must focus on the child’s best interests.

It is essential to note that should parents not reach an agreement, either party can apply to the family court for orders under the Children Act 1989, which may include residence or contact orders. Legal advice is often recommended in such instances.

The Need for Cohabitation Agreements

Cohabitation agreements are legal contracts drawn up by unmarried couples living together who want to gain more security and protection over their assets should the relationship break down.

As you’ll be aware by now, if you’re unmarried and living together, your rights to property, pensions, and inheritance for example are XYZ.

Cohabitation agreements don’t need to cost you thousands. Our team of solicitors can draw up a cohabitation agreement for £849.

If you would like to get more information on our services or your rights as cohabitees, request a free callback or chat with us on Live Chat.