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The Myth of ‘Common Law Marriage’ – Know Your Legal Rights

The legal rights of unmarried cohabiting couples can be unclear, with many couples relying on the ‘myth’ of common law marriage – do you know what rights you would have if you and your partner went your separate ways? A poll by the family law group Resolution revealed that over half of respondents believed that cohabiting couples had the same rights as married couples if they decided to separate, but unfortunately this is not the case.

Steve Kirwan who is leading Resolutions work to reform the laws on cohabitation said: “Despite the myth that there is such a thing as ‘common law’ marriage – which hasn’t existed since 1753 – it is possible to live together with someone for decades and even to have children together, and then simply walk away without taking any responsibility for a former partner’s welfare. That is simply wrong, it needs to change, and it needs to change now.

“This isn’t about whether you believe people should be married or not, this is about ensuring that people are aware of their legal rights – and the fact that more than two thirds of MPs identify this as a problem clearly points to the need for reform.”

QC Lord Marks gave a speech at a Lib Dem conference in September reiterating the motion, stating that proposals to adjust the legal rights of cohabiting couples “will help correct a severe injustice for many who have lived together for substantial periods or who have children together.”

Rising numbers of couples are choosing to live together rather than get married – the figure has doubled since 1996 to 5.9 million in the UK – but there is very little protection in place for unmarried couples who decide to separate. Resolution has been campaigning for changes to the law to reflect this increasing demographic group of cohabiting couples.

If you are cohabiting with your partner, you can make your status as a couple more formal by drawing up a cohabiting contract or living together agreement, which is a little bit like a prenuptial agreement, outlining the responsibilities and rights of each party and providing you with a document to refer to in the case of separation. These agreements, like prenups, may not be legally enforceable but can certainly make the separation process clearer and provide you with a good grounding for stating your claim. There are other legal agreements you can make to reinforce your situation further, for example: detailing how you would share a jointly-owned house should you separate. Your solicitor should be able to give you advice on what kind of agreements might be right for your circumstances.


Jo Gatford

Frances Lindsay & Co Solicitors

DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to frances lindsay. directly.

Published on 4th November 2013
(Last updated 14th July 2023)