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Janet Raeburn

Partner - Uckfield

23rd August 2019

The rising number of cohabiting couples and the myth of common law marriage

The Office for National Statistics released a new report this month which shows a significant increase in the number of couples choosing to live together without marrying. As lifestyles change and the social demand for marriage is less prevalent, this statistic is perhaps unsurprising.

Common law marriage

What we are seeing alongside this increase is how widespread the myth of the ‘common law marriage’ is. Surely if you have cohabited for many years, you gain some legal rights? This is not the case. In law, ‘common law marriage’ does not exist. The fact there may be children of the relationship does not change this.

What happens if you separate?

If an unmarried couple separates, you have no automatic right to claim against your partner’s assets. For married couples, the available laws give the Court wide-ranging powers to divide assets in a manner tailored to the couple’s circumstances, including income, property and pensions. These laws are not available to unmarried couples.

An unmarried person can make certain claims. For example, where there is property, you may be able to claim a share of it depending on a number of factors, in particular how the property is owned. The law to be relied on here can be complex and will not necessarily lead to a ‘fair’ outcome.

Child maintenance

Where there are children, child maintenance will be payable in accordance with the rates set by the Child Maintenance Service. In addition to this, it is possible in certain circumstances to apply to the Court for financial provision for the benefit of any children, including housing, capital and income. The right to claim here arises purely as a result of a child’s needs and, for example, where housing is provided that housing is generally returned to your former partner upon your child becoming an adult or finishing secondary education.

What can cohabiting couples do to protect themselves?

Positively, there are steps cohabiting couples can take to protect themselves. These include entering into a Cohabitation Agreement or Declaration of Trust, which would establish what should happen to assets upon separation and provide a degree of security.

Rix & Kay’s Family team

Janet Raeburn is a specialist family lawyer in Sussex with significant experience in helping cohabiting couples protect their assets and resolve disputes. If you would like any advice please email Janet on JanetRaeburn@rixandkay.co.uk or call 01825 744482.

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