The myth of common law marriage

Joanne Joyce from the Family Department of Lovedays Solicitors discusses the misconception around the legal rights of common law marriage.

Joanne Joyce Family Matriomonial Divorce SolicitorWho knows how legends and myths evolve or how they become part of popular culture? How does a population come to believe in Dragons, Fairies or even Common Law marriage? Somehow, the word on the street becomes Gospel and people believe what they hear and take it to be true.

Most legends will cause very little harm other than to perhaps make the ‘believer’ look stupid at a gathering of friends. Believing in the rights of Common Law husband and wife, however, can leave an individual left with nothing after years of living with and being a partner of someone. In such a case, there may be an assumed security regarding legal claims being available against a partner following the breakdown of a relationship.

Under English Law there is no recognised legal status of Common Law husband and wife. The law recognises married as a legal status and single as a legal status. For people cohabiting there are no special legal rights or claims for the cohabitees however many years the cohabitation might have taken place. Cohabitation does not confer the same legal rights and duties as marriage. As a cohabitee you have no claims over:-

  • Your partner’s pension pot which has accumulated over the time that you have been living together (although if you are specifically named as the nominee you may receive the death in service benefit whilst you are specifically named as beneficiary)
  • Maintenance or support for you (as opposed to support for your children) from your cohabitee even if you have stayed at home looking after the children or are still doing so.
  • The family home owned in your partner’s sole name. You do not gain a legal interest just because you have lived with someone as cohabitees (you may have a claim under the Law of Trust, if you satisfy the legal
  • requirements which are based on matters other than you living as husband and wife).
  • A tenancy in your partner’s name. You have no right to live there in your own right just because you have cohabited with the tenant (save in some cases with court order).
  • Any savings or assets in your partner’s name.
  • Your partner’s estate if your partner dies without making a will (although you may take outright the jointly-owned property which is held as joint tenants, or you may have a claim as a dependant).
  • The things which you have acquired and worked for, unless you can show that you paid for those items.

As far as cohabitees are concerned, the financial legal ties are limited to the legal ownership of property where they lived together and to financial support for any child or children they have together, by way of child maintenance through the Child Maintenance Service and possibly, in very limited circumstances, by way of a claim for financial support for your child under Schedule 1 of the Children Act.

Couples live together rather than marry for many reasons. However, if they live together believing that they are giving each other special legal rights and claims against each other which protect them going forward to the same extent as marriage, then they are wrong. A cohabitee can end up with absolutely nothing even though they chose to cohabit based on a mistaken belief that they had financial protection and legal claims. No matter how unjust or unfair the result may be, there is no legal remedy for these sadly-mistaken individuals.

In this age of information, communication and knowledge, it would be hoped that individuals would no longer live their lives and regulate their affairs based upon a misconception, but unfortunately many people still believe that living together is the same as marriage and as good as marriage. This is not the case and this needs to be something which people are clear about, so they can make informed choices about how they live together.

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