“Common law marriage” is a legal fiction. We explain what practical steps you, as a cohabitee, can take to minimise the legal disadvantage of your position. Our Family Law Team is available on 01225 462871. Alternatively, you can contact them by email.
According to the Office for National Statistics, as of November 2019, there were around 3.5 million couples cohabiting in the UK. Since then, it’s likely that lockdown has driven that number much higher.
What is a common law partner?
A surprising number of people are under the misconception that once they have cohabited for a number of years, and particularly if they have children, they acquire the same legal status as a married couple. However, this concept of a “common law marriage” is total legal fiction.
The simple fact is that the law in England and Wales provides little protection for cohabiting couples who are not married or in a civil partnership, regardless of the duration of their relationship. Unlike married couples who have automatic financial claims on relationship breakdown, cohabitees have very limited protection against being disadvantaged, even if they have made career or other financial sacrifices to raise a family.
But relationship breakdown is not the only scenario where cohabitees are at a disadvantage. As a cohabitee, you have no automatic entitlement to your partner’s assets if they die intestate, ie without a Will. Married couples also have the benefit of tax exemptions for Capital Gains Tax (CGT), Inheritance Tax and Stamp Duty Land Tax, which cohabitees do not.
If you are married, there is no requirement for your spouse to nominate you to benefit from a survivor’s pension. There is an absolute need for this for cohabitees.
As a cohabitee, you may simply not wish to marry or enter into a civil partnership, or you may have a legal, religious or other obstacle preventing you from doing so. The question then arises, how can you protect yourself?
There are a number of steps that you and your partner can take to minimise the legal disadvantage of your position. These include:
- Entering into a cohabitation agreement. This is similar to a pre-nuptial agreement, and sets out your intentions to be relied on both during the relationship and in the event of separation, in terms of property, finances and children.
- Entering into a Deed of Trust if you intend to purchase a property together, to specify and safeguard both your and your partner’s interests.
- Making Wills. This is easy, inexpensive, and ensures that you and your partner will inherit from each other.