The Myth of Common Law Marriage


There would appear to be a wide misconception that by living with a partner, for a length of time, it is possible to acquire rights akin to those enjoyed by married couples and civil partners. Unfortunately however, this is not the case.

Parties that elect to marry or to enter into a civil partnership assume the associated rights and responsibilities. As such, should the marriage or civil partnership irretrievably breakdown, the court has a broad discretion, with fairness firmly at its root, to distribute the property and assets built up by the parties, in addition to their respective pensions and income.

The starting point for this division is, in the majority of cases, a 50/50 split, with the court always looking at the circumstances of each individual case and applying a checklist of factors when exercising its powers. The court is most concerned with meeting “need” and where there are children, the court will prioritise their need above all. As such, this can lead to an unequal division of finances.

Conversely, those parties who live together but are not married or in a civil partnership, do not hold the same legal status, and are at risk of being at a disadvantage upon a relationship break down. The court does not hold the same powers in this situation and therefore, save those assets which are held jointly, the assets or income of the parties are not required to be distributed accordingly to need or fairness in the same way, often leaving the financially weaker party in difficulties. This is the position regardless of the length of time the parties have cohabited or whether they have any children together.

Consequently, a former cohabitant, who seeks a share of the family home held in the sole name of the other party, will need to demonstrate that they hold a beneficial interest in the property. Ideally, this will be by way of a Declaration of Trust, defining the parties respective beneficial interests.

In the absence of a Declaration of Trust, it may be possible for a party to demonstrate that they hold a beneficial interest in a property by way of a common intention constructive trust or proprietary estoppel. In circumstances where there is a dispute between the parties, proceedings pursuant to the Trusts of Land and Appointment of Trustees Act 1996 may be initiated to determine the beneficial ownership of any property.

For jointly owned property, in circumstances where the TR1 and JO Forms are executed, specifying the intended ownership of the property, this is usually sufficient to demonstrate the parties intentions.

Cohabiting parties that separate are not entitled to maintenance for themselves from the other party, however if they have children together it is open to them, as with married and civil partnerships, to apply to the Child Maintenance Service for child maintenance. In some cases, an application pursuant to Schedule 1 to the Children Act 1989, for capital provision, use of a property whilst the children are in their minority and a carer’s allowance may also be contemplated.

Another important consideration is that where parties harmoniously cohabit together until one party dies, in the event that the deceased party has not left a will setting out their testamentary wishes, the surviving party has no automatic right to inherit, which those who marry or form a civil partnership do. Cohabitants are therefore likely to then find themselves in a position when they have little option but to apply against their late partner’s estate under the Inheritance (Provision for Family and Dependants) Act 1975. This application can only be made if the parties have been cohabiting for at least two years immediately prior to the death and any financial provision they can consequently obtain will be determined by the status of their relationship with their deceased cohabitee. Provision for spouses and civil partners is based on reasonableness, provision for cohabitees is based on their maintenance needs.

What is clear, is that since 1996, from figures made available each year by the Office for National Statics, there has been a steady increase in the number of cohabiting couples in the UK and up to 2017, heterosexual cohabiting couples with dependent children have been the fastest growing family group. Having regard to these statistics, it is concerning that the common law marriage myth has not been dispelled and the current legal position remains inadequate to meet cohabiting couple’s needs.

With that said, there are certain precautions, as alluded to above, that can be taken by co-habiting couples to safeguard their position as best as possible. These include; ensuring that each party has a will and it is up to date, in regard to any property – ensuring that the parties interests are clearly defined, such as by way of the preparation of a Declaration of Trust, and it is often also recommended that parties consider entering into a Cohabitation Agreement - recording their intentions in respect of their living arrangements.

At Parfitt Cresswell we would love to help you and are offering a number of complimentary telephone/video conference consultations this month. To find out more and reserve your spot to speak with one of our legal experts call 0800 999 4437 or email enquiries@parfittcresswell.com today.