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The Myth of Common Law Marriage

04 November 2014

The phrase ‘common law husband/wife’ is frequently used but common law marriage has not existed in England and Wales since 1753. If you are living with someone without being married, no matter how long you have been living as “husband and wife”, you might think you have similar rights to married couples if the relationship breaks down or one of you dies, but you would be wrong. Cohabitants have very few rights that arise out of the relationship. You cannot, for example, claim maintenance from a cohabitant or former cohabitant for your benefit.

The result of a breakdown of the relationship can be a financial disaster for a dependent cohabitee. The children of such a relationship may be left at a financial disadvantage. This can lead to a complex and often costly legal dispute when a couple split up. As the law stands, the only solution for cohabiting couples who want legal protection should they split is either to marry or draw up a cohabitation agreement, otherwise known as a ‘Living Together Agreement’ or ‘No Nup’.

It is no surprise, therefore, that the number of couples signing cohabitation agreements before moving in with one another has risen sharply in recent years.

Such agreements set out what you would both want to happen in the event of your separation and can cover all sorts of aspects of a relationship, not just contributions to property. Other areas of potential conflict could be who pays the mortgage, bills and how other financial obligations are divided. The agreement can also make provision for what happens in the event of the death of one or the other of the parties.

In Scotland, unmarried couples who live together already have legal rights upon separation. It may be time for the rest of the UK to catch up and bring the law in step with how millions of people are choosing to live their lives.