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Busting the Common Law Marriage Myth

on Monday, 10 June 2019.

With cohabiting families totalling 3.3 million, they are the fastest growing type of family over the last 20 years. If you are currently part of a cohabiting family, it is important that you know your rights.

You may or may not be surprised to read that 46% of people in England and Wales believe in a 'common law marriage'. This suggests that they believe that just because you are essentially living 'as man and wife' you assume the rights afforded to married couples. Unfortunately, there is no such thing as a 'common law marriage', meaning that cohabiting couples do not have the same legal rights as married couples.

To give you some idea of how this may impact on you, we have set out an example that includes a number of issues that could arise for cohabiting couples.

Bob lived in a small rented property in Bristol. He met Rose after 6 months of living in the property and she moved in a few months later. They have both been living in the property for 5 years. Bob is named on the tenancy agreement, however Rose is not. Rose has recently found out she is pregnant with Bob's child. Neither Bob nor Rose have a will. Bob and Rose have no intention of getting married and are happy cohabiting.

This scenario presents a number of issues:

  • Housing - In Rose's situation (as the unmarried partner of a tenant) she will have no rights to stay in the accommodation if Bob asks her to leave. If Bob and Rose were married, regardless of the fact that the tenancy is in Bob's name, both married partners have a right to live in the matrimonial home, unless there is a court order specifying otherwise. It would be advisable for Rose to have her name added to the tenancy agreement.

  • Parental responsibility - Parents with parental responsibility are entitled to have a say in important issues concerning their child such as the child's education, health and name. Contrary to what you might expect, being the biological father of a child does not automatically provide you with parental responsibility. If Bob and Rose were married, under section 2(1) Children Act 1989 Bob would automatically obtain parental responsibility by virtue of being married to Rose. As Bob and Rose are not married, he can acquire parental responsibility if he:
    • marries Rose
    • enters into a Parental Responsibility Agreement and files this with the court
    • applies to the court for parental responsibility and/or
    • is named on the child's birth certificate

  • Will - If Rose were to die without leaving a will, Bob will not automatically inherit anything unless they owned property jointly and it was held as 'joint tenants'. If Bob and Rose were married and had no will, the other will automatically inherit all or some of the estate. It is advisable that Bob and Rose make wills to ensure the other partner inherits their estate.

Whilst this is not an exhaustive list of the issues that cohabiting couples may face, we hope this demonstrates the risks of relying on the myth of 'common law marriage'.

What Can I Do to Protect My Rights?

On the simple facts included within the example above, we have included a number of recommendations of how cohabiting couples can protect themselves. We would also recommend that cohabiting couples consider entering into a cohabitation agreement which sets out the respective parties interests in the home, how expenses are paid and divided and what should happen if that parties decide to separate. For more details on how a cohabitation agreement could benefit you please click here.

If you would like any advice in relation to any of the issues raised in this article, please contact Sam Hickman in our Family Law & Divorce team on 0117 314 5435.


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