Common Law Marriage in England – Fact or Fiction?

The Myth of Common Law Marriage

If you have ever been told that living together for a certain number of years makes you a common law husband or wife, you have been given incorrect information. It is one of the most widespread legal myths in England and Wales, and it causes real harm to people who discover the truth at the worst possible moment.

The Office for National Statistics recorded that cohabiting couples are the fastest growing family type in England and Wales. Yet the law has not kept pace. Common law marriage is simply not recognised here. There is no length of time you can live together, no number of children you can have together, and no level of financial entanglement that automatically grants you the rights of a married couple.

This matters enormously when a relationship breaks down, when a partner becomes seriously ill, or when one partner dies. Understanding the reality of your legal position is the first step towards protecting yourself and your family.

What Does ‘Common Law Partner’ Actually Mean?

The term common law partner is used informally to describe someone you live with in a long-term relationship without being married or in a civil partnership. It has no legal definition in English law and confers no automatic rights or protections.

In some countries, including certain US states and parts of Canada, common law marriage is a recognised legal status. In Scotland, the law has offered some limited protections to cohabiting couples since the Family Law (Scotland) Act 2006. But in England and Wales, no equivalent legislation exists.

Whether you have lived together for two years or twenty, the position in law is the same. You are an unmarried couple, and if you separate, the protections available to you are significantly more limited than those available to married couples going through divorce.

What Rights Do You Not Have as a Cohabiting Couple?

When married couples separate, the family court has wide-ranging powers under the Matrimonial Causes Act 1973 to redistribute property, savings, pensions and income in whatever way it considers fair. Those powers simply do not apply to unmarried couples.

Here is a clear summary of what cohabiting couples do not have automatic entitlement to:

• A share of property: If the home is in your partner’s name only, you have no automatic right to a share of it, regardless of how long you have lived there or what you have contributed.
• Financial support for yourself: Unlike on divorce, you cannot claim spousal maintenance or a share of your partner’s income for your own benefit after separation.
• A share of pensions: There is no equivalent of pension sharing or pension offsetting for unmarried couples on separation. Some pension schemes allow death benefits to be paid to a cohabiting partner at the trustees’ discretion, but this is not guaranteed.
• Inheritance rights: If your partner dies without a will, the rules of intestacy give you nothing. Their estate passes to blood relatives, regardless of how long you were together.
• Tax benefits: Married couples benefit from inheritance tax exemptions and certain other tax advantages that are not available to unmarried partners.

You do, of course, retain rights in relation to any children you have together. Either parent can claim child maintenance, and arrangements for where children live and how much time they spend with each parent can be agreed through mediation or, where necessary, through the family court under the Children Act 1989.

Property Disputes: What Can You Claim?

Property is where the legal gap between married and unmarried couples feels most acute. When a cohabiting couple separates and they jointly own their home, the split is usually governed by the terms of their ownership, whether that is as joint tenants (equal shares) or tenants in common (agreed percentages).

Where the property is in one partner’s name only, or where the ownership split is disputed, the situation becomes significantly more complex. Claims may be brought under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). These cases ask the court to establish whether one party has a beneficial interest in a property, based on evidence of financial contributions, agreements made between the parties, or conduct that demonstrates a shared intention of ownership.

TOLATA claims can be complicated and the outcome depends heavily on the specific facts and available evidence. They are quite different from the broader discretionary approach a court takes on divorce, and specialist legal advice is strongly recommended before pursuing this route.

How to Protect Yourself as a Cohabiting Couple

The good news is that there are practical steps you can take to protect your position, even though the law does not do it for you automatically. These are worth considering at any stage of a relationship, not just when things go wrong.

1. Draw Up a Cohabitation Agreement

A cohabitation agreement is a legal document that sets out how you and your partner intend to manage finances, property and other shared responsibilities during your relationship and, importantly, what will happen if you separate. It can cover who owns what, how joint expenses are split, and what should happen to the family home.

While cohabitation agreements are not automatically legally binding in the same way as a court order, they carry significant weight and provide a clear record of what was agreed. A well-drafted agreement, prepared with independent legal advice on both sides, is far more likely to be upheld if a dispute reaches court.

Think of it as providing the kind of clarity and protection that marriage offers, but on your own terms. Many couples find the process of drawing one up a useful exercise in itself, bringing important conversations about money and property to the surface before they become problems.

2. Make a Will

Without a will, your partner has no automatic right to inherit anything from your estate. The rules of intestacy in England and Wales pass assets to blood relatives first. A will is the only reliable way to ensure your partner is provided for if you die.

It is also worth reviewing beneficiary nominations on pensions and life insurance policies, as these pass outside of your estate and are governed by the terms of the policy rather than your will.

3. Consider How You Hold Property

If you are buying a property together, take legal advice on whether to hold it as joint tenants or tenants in common. If one of you is contributing significantly more to the purchase, tenants in common allows you to record your respective shares formally in a declaration of trust, so there is no ambiguity later.

When Cohabiting Couples Separate: How Mediation Can Help

If your relationship has broken down and you were not married, the absence of a legal framework does not have to mean conflict. Family mediation is particularly well-suited to separating cohabiting couples, precisely because there is no rigid legal structure to follow. Mediation gives you the flexibility to work out what is fair for your specific situation.

A trained, independent mediator helps you and your former partner have structured, productive conversations about the issues that need to be resolved. This could include:

• The family home: whether to sell it, whether one of you can buy the other out, and how any equity should be divided given your respective contributions.
• Other assets and savings: how joint accounts, shared savings, and personal possessions are divided.
• Children: where they will live, how much time they spend with each parent, and how decisions about their upbringing will be made. Our guide to child arrangements explains this in more detail.
• Child maintenance: how ongoing financial support for the children will be managed.

Unlike court proceedings, mediation puts you in control of the outcome. Agreements reached in mediation are recorded in a document called a Memorandum of Understanding, which your solicitors can then use to draw up a formal legal agreement if needed.

To access mediation, you will first need to attend a Mediation Information and Assessment Meeting (MIAM). This is a one-to-one appointment with a mediator where you discuss your situation and find out whether mediation is the right option. You can read everything you need to know about what to expect in our MIAM guide, or check whether you need one using our MIAM eligibility checker.

Can a Separation Agreement Help Unmarried Couples?

Yes. A separation agreement can be a useful tool for cohabiting couples who want to formalise how they have divided their finances and property. While it is not automatically legally binding in the same way as a court order, a well-drafted separation agreement, drawn up with independent legal advice on both sides, provides a clear record of what was agreed and carries weight if any dispute arises later.

It can set out who keeps which assets, who will remain in the family home (or that it will be sold), how debts are divided, and what the arrangements are for any children. Think of it as a way of bringing the clarity of a legal framework to a situation where the law would otherwise leave things uncertain.

Does Common Law Marriage Exist Anywhere in the UK?

Scotland is the only part of the UK where cohabiting couples have any statutory protections. The Family Law (Scotland) Act 2006 gives cohabiting couples in Scotland some limited rights, including the ability to apply to the court for a financial settlement on separation and some protection where a partner dies without a will. These rights are not equivalent to those of married couples, and they do not apply to couples in England and Wales.

There have been calls from family law organisations, including Resolution, for reform of cohabitation law in England and Wales for many years. A Law Commission report in 2007 recommended the introduction of a statutory scheme for cohabiting couples, but no legislation has followed. For now, the position remains unchanged: if you live together in England and Wales without marrying or entering a civil partnership, you have no automatic legal rights on separation or death.

Frequently Asked Questions