Cohabitation and the myth of ‘common law marriage’

Many unmarried couples believe that if they live together for long enough, they will automatically become ‘common law husband and wife’ and enjoy the same rights as married couples. However, this is a myth.

While cohabitees do enjoy legal protection in several areas, they still have significantly fewer rights than couples who are married or in civil partnerships. Inevitably, many only discover how few rights they actually have when  a relationship breaks down.

While married couples who divorce are legally entitled to make claims on each other’s assets, including property and pensions, the same rights do not apply to cohabitees, who will generally have to come to an agreement between themselves or, in the worst case scenario, become embroiled in a legal battle.

If one partner owns a home and the couple split up without having an agreement in place, then the other person has no legal right to stay in that property. The same applies with rented properties where only one partner has their name on the tenancy agreement.

Without any agreement in place, one partner can walk away from the relationship with all their savings and possessions and the other partner will have no claim on those assets. Where items were bought jointly but each side contributed different amounts, each partner owns the equivalent of their contribution, rather than dividing it equally.

Unmarried parents should also think about their legal position, as fathers who have not jointly registered themselves with the mother on the child’s birth certificate will not automatically have parental responsibility. They will, however, still have to pay child support if they separate from the mother.

There are steps which can be taken to offer greater protection in the event of a separation. Firstly, if buying or renting a house together, it is advisable to put both parties’ names on the tenancy agreement or to purchase in joint names and to have a trust deed in place to set out each party’s interest.

Secondly, drawing up a cohabitation agreement enables couples to set out in writing how property will be divided in the event of a split, on terms agreed by both parties. As with pre-nuptial agreements, cohabitation contracts are not legally enforceable under British law. However, should a disagreement reach court, the contract can serve as evidence that a written agreement was made between the two parties, with the judge then having discretion over whether to support its terms or make their own decision.

It is also worth noting that an unmarried partner, save for a civil partner, has no automatic right to benefit from their partner’s estate in the event of their death, making it particularly important for unmarried partners to make wills.

Everyone’s situation is different, so it is always best to seek professional legal advice to discuss the options available to you. For advice on the law surrounding cohabitation, including cohabitation agreements, please contact us.

Hannah Kelly is a Partners at Palmers Solicitors, specialising in family law, including divorce, separation and cohabitation.