Home Personal Family Law What is Common Law Marriage?

What is Common Law Marriage?

Contrary to popular belief, there is no such thing as common law marriage in the UK. Whilst the term is often used colloquially to refer to cohabiting couples, common law marriage is not legally recognised here.

Moreover, notwithstanding the prevalence of unmarried couples cohabiting in the UK, the legal rights of those living together differ significantly to those of married couples.

Below we explore in more detail the question of ‘what is common law marriage?’ and the different implications for married and unmarried couples, not least your legal rights if the relationship breaks down, or on the death of your partner.

Your legal rights on separation

When examining ‘what is common law marriage?’ many couples are completely unaware of their rights if the relationship comes to an end. Below we examine some key comparisons between the legal rights of married and unmarried couples following a separation.

Ending the relationship

  • Married – whilst a married couple can separate informally, an application would need to be made to the court for a divorce if they wanted to formally end their relationship.
  • Unmarried – if you are unmarried you can separate informally without the intervention of a court, although the court retains the power to make orders relating to the custody and care of any children. Whilst as an unmarried couple you will not be faced with the formalities of filing for divorce, you will not be afforded the same financial and legal rights as a married couple.

Legal advice – the question of ‘what is common law marriage?’ and the law relating to the rights of unmarried couples on separation can have significant consequences for all parties involved. To explore your options in the event that your relationship comes to an end you should seek legal advice.

Owner-occupiers

  • Married – both married partners have a right to remain in the matrimonial home until the court orders otherwise. This is regardless of whose name the property is in. The court also has the power to transfer property regardless of original ownership.
  • Unmarried – if you are an unmarried couple and jointly own property you and your partner have equal rights to stay in the property. However, if your partner is the sole owner, you may have no rights to remain if you are asked to leave.

Legal advice – the question of ‘what is common law marriage?’ and the law relating to owner-occupiers can be highly complex. If there is a dispute as to who should remain in the property, you should seek legal advice. A court may make a short-term occupation order or, if it is in the best interests of any children, transfer the property into your name until the youngest child turns 18. You may also be able to claim a beneficial interest in the property to reflect your contributions towards the household.

Rented property

  • Married – each married partner has the right to live in the matrimonial home, irrespective of whose name is on the tenancy agreement. On separation or divorce, a tenancy can be transferred into the name of either party. In the case of a joint tenancy, one name can be removed.
  • Unmarried – if you are the unmarried partner of a sole tenant, whether in private or social housing accommodation, you will usually have no rights to stay in the accommodation if your partner asks you to leave.

Legal advice – the question of ‘what is common law marriage?’ and the law relating to rented property rights for unmarried couples can again be complex. If you are currently cohabiting in rented property you may want to seek legal advice on transferring any sole tenancy into a joint tenancy to give you each equal rights and responsibilities.

Financial support

  • Married – each married partner has a legal duty to support the other during the course of the marriage. Further, the court may order that one partner must continue to support the other after the marriage has ended.
  • Unmarried – there is no legal duty on cohabiting couples to support each other financially. Whilst the law makes separate provision for children, if you are an unmarried partner who stays at home to care for children you will be unable to make any claims in your own right for property, maintenance or pension-sharing.

Legal advice – the question of ‘what is common law marriage?’ and the law relating to financial support on separation can leave unmarried couples with an uncertain future. If you or your partner would like to make financial provision in the event that your relationship comes to an end you may want to seek legal advice on drawing up a cohabitation agreement.

Children

  • Married – both married partners automatically have parental responsibility over any children. Parents with parental responsibility are entitled to have a say in important decisions about a child’s life such as where they live, their health and education.
  • Unmarried – if you are unmarried you will have parental responsibility either as the child’s birth mother or as a legally adoptive parent. If you are an unmarried father or an unmarried female partner of the child’s mother, you do not have parental responsibility unless your name is on the child’s birth certificate.

Legal advice – the question of ‘what is common law marriage?’ and the law relating to parental rights can cause understandable concerns for unmarried partners. To explore ways in which you can obtain parental responsibility you may want to seek legal advice, for example, on obtaining a parental responsibility order through the courts.

Your legal rights on the death of your partner

When examining ‘what is common law marriage?’ many couples living together are completely unaware of what will happen to them financially if their partner dies. Below are some key comparisons between the inheritance rights of married and unmarried couples following the death of either partner.

Inheritance rights

  • Married – if a spouse or civil partner dies intestate (ie; without a valid will), the surviving partner will automatically be entitled to inherit some or all of the deceased’s estate under the rules of intestacy.
  • Unmarried – if you are living together and one of you dies without leaving a will, the surviving partner will have no automatic right to inherit anything unless you owned property jointly. If the property was owned as tenants in common rather than as joint tenants the share belonging to the deceased partner will be dealt with under the rules of intestacy. If you are unmarried and die intestate, any children or other close relatives will inherit your estate.

Legal advice – the question of ‘what is common law marriage?’ and the law relating to the rights of unmarried couples on death can have significant financial consequences for the surviving partner. As an unmarried couple you should seek legal advice to each make financial provision within a written will.

Should I seek legal advice?

When examining ‘what is common law marriage?’ the legal protection afforded to cohabiting couples is far less than that enjoyed by married couples – no matter how long you have lived together and whether or not you have children.

As it stands in the UK, the law provides the unmarried couple with very limited legal and financial rights in the event that things take a turn for the worse.

A legal advisor specialising in family matters can provide expert advice to help you plan for any unfortunate eventualities, or to guide you through the difficulties of separation.

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