Cohabiting vs Marriage; Debunking the common law marriage myth

Does the state of common law marriage exist? Once a couple hits a magic number of years living in cohabitation bliss they reach a state of (near) nirvana called common-law marriage. A marriage by habit and repute, which affords those concerned the same rights as a ‘legally’ married couple. Right?

Debunking the common law marriage myth

Well no. There is, in fact, no such thing as a ‘common law marriage’. A couple may have been living together for 25 years, have a mortgage, joint bank accounts, children, grandchildren a dog and a goldfish. Lives totally enmeshed, living as a married couple but, in the eyes of the law, you’re well…. Strangers.

Cohabiting vs Marriage – what are the differences?

Cohabiting couples are the fastest growing group in the UK demographic – with the number of unmarried couples living together rising from 1.5 million in 1996 to 3.3 million in 2017.

According to a recent survey carried out by family law group, Resolution two-thirds of co-habiting couples wrongly believe ‘common law marriage’ law exists. Two-thirds considered themselves to be in a common law marriage and, should their relationship breakdown or their partner die, they will enjoy the same financial and legal protection as a legally married couple. This simply is not the case.

Here are a few of the ways your rights as a cohabiting couple differ significantly to those of a married couple:

Death, Wills, and Inheritance

Unmarried couples have no automatic rights to their partner’s property on their death. However, if you own your property jointly ownership passes to the surviving owner any other assets will be distributed under the laws of intestacy. No automatic entitlement to inherit their estate, even if you have children together. And, unlike married couples, you are unable to pass your inheritance tax allowance to your partner and may, therefore be liable to pay inheritance tax.

To protect yourselves and your inheritance you must write a Will – without a Will in place your unmarried partner may not benefit in the way you wish. So, it’s incredibly important to have the right protection in place.

Ending a relationship and Financial support

Unlike those married folk cohabiting couples do not have to go to court in order to end their relationship. They also have no legal obligation to provide any financial support for their ex-partner. However, unmarried fathers have financial responsibility for their children even if they are not named on the birth certificate.

Living together

Cohabitants – Should your partner solely own the property you live in you have no right to stay there if they ask you to leave. If you have children the court may award the property to you. If you were married you would have a claim to the asset.

It is prudent to draw up a cohabitation contract – sexy right. This document sets out what each partner has contributed financially to the household and how, in the event of a split, you would like your assets to be divided. This is important if you’re living in a house owned by your partner but you are contributing to the mortgage – without this, you may have no claim on the property.

A detailed guide to the differences between cohabitation and marriage can be found on the Citizens Advice Bureau here:

Time to change the law?

As fewer and fewer couples decide to embark on marriage it’s clear that the law needs to change. Resolution chairman Nigel Shepherd said current laws were “behind the times” and he is not wrong! Currently, there are millions of cohabiting couples are at risk of being left out in the cold financially that need adequate, legal protection and that number is only set to grow.

The ComRes poll of 2,000 UK adults, by Resolution, found 84% of people thought the government should take steps to make sure unmarried cohabiting couples knew they did not have the same legal protection as married couples.

While we wait for law legislation to be put in place the best advice that we can give is for anyone cohabiting is to put a cohabitation agreement in place and to write your Will, something we would be very happy to help you out with.

Whether your cohabiting, married or single Future Legal Services provides a comprehensive Will writing and Estate planning service. Our rates are some of the most competitive on the market and we guarantee a personal and confidential service for all our customers. To find out more about planning for the future with Future Legal Services call us on 01322 664885 or email

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