What is the ‘common law marriage’ myth?

It’s been revealed that two thirds of cohabiting couples don’t know how their protection differs from married couples or civil partners. Rebecca Patience explores the myth that is common law marriage.

Cohabiting couples are often referred to as common law spouses; however, this does not accurately reflect their legal position. Unlike married couples and civil partners, cohabiting couples are afforded limited protection under legal provisions should their relationship break down.

A recent survey carried out by family law practitioners at Resolution, reveals that two thirds of unmarried couples living together in the UK believe that there is such a thing as common law marriage, especially when assets are to be divided.

It is a common misconception among these couples that common law marriage exists in long term relationships and those relationships where children are involved. However, no legal duty exists requiring cohabiting couples to support each other financially.

If an unmarried partner gives up work to care for the home or a child, they can’t make claims for property, pension sharing or personal maintenance in the breakdown of a relationship. However, claims can be made for financial support of children and family.

Cohabitation Agreements

A cohabitation agreement is a method which is often used to give some protection to unmarried couples. Cohabitation agreements are not legally binding at present, however, if written as a formal legal deed, they will become a legally binding document. Despite this, case law suggests that the court will usually follow a cohabitation agreement providing it is fair to both parties and they were honest about their finances when the agreement was made.

In March 2017, the House of Commons highlighted that the court would be more likely to uphold a cohabitation agreement if both partners had sought independent legal advice prior to signing the agreement.

Harrison Drury’s team of specialist family lawyers can provide tailored legal advice for you. For further advice and support contact our divorce and family law team on 01772 258 321.