The ‘Common Law Marriage’ Myth

By Sheata Karim

People who live together but do not marry often believe that they are covered by something called ‘common law marriage’ if they separate, but unfortunately this is simply a common myth. ‘Common law marriage’ is not a legal status in England and Wales and cohabiting couples do not have the same legal rights as married people in the eyes of the law.

Cohabitation is defined as people living together who are not married or in a civil partnership. With an estimated 25% of British couples aged between 16 and 59 cohabiting, it is the fastest growing ‘family type’ in the UK and it is therefore vital that unmarried couples are aware of this myth.

When cohabiting couples separate, they are often faced with the harsh reality that they are not entitled to the same financial support, share of assets or tax exemptions as their married counterparts.

In simple terms, the English Courts view married couples as a family with a shared life and assets, whereas a cohabiting couple are two individuals with little to no rights with regards to each other’s finances or property. This could mean that if one partner paid for the house and other paid for the furniture, then one of you may be left with a bed and no room.

Many family law solicitors find that separating couples are also under the assumption the amount of time they were in a relationship will affect the division of property and assets, however, the English Courts will not take this into consideration.

The Courts will always consider the children involved and parents are entitled to make claims for maintenance to support any children they have together, but there is no such support for the financially weaker party of the unmarried couple.

The current situation is not ideal; cohabitation is on the rise but the government is continually favouring married couples and families in both current and new legislation. It is also commonplace for people to move in together first to test the waters, so for such people or couples who do not wish to marry, it is strongly advised that you draw up a cohabitation agreement.

Cohabitation Agreements

A sound action to protect cohabitees who do not wish to marry is to draw up a cohabitation agreement (or ‘no-nup’ as it has been playfully dubbed in the media). This will define a clear division of assets upon the breakdown of the relationship and may also cover other important factors, such as child support.

Wills and Inheritance

Unless your partner has made a legal will, you will not have any automatic rights to inherit from them. Everyone should have a will regardless of their marital status, but it is especially important for cohabiting couples as the law will only recognise a spouse or civil partner in such circumstances. It is even more advisable for unmarried couples with children to create a valid will, so as to ensure the future security of your family.

Parental Responsibility

Fathers should be aware that they may not have automatic parental responsibility of children born before 1 December 2003 if they were not married to the mother at the time of birth or they are not named on the birth certificate. This could affect your right to important decisions such as schools or religion. If you meet the above criteria, you should enter into a formal agreement with the mother or obtain a court order to ensure your parental rights.

Sheata Karim is an experienced family law solicitor and the founder of Grayfords, a boutique family law practice based in Fitzrovia. Sheata specialises in cohabitation, marriage and divorce matters.

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