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Divorce myth: Common law marriages are legally recognised

18 Jan 2022

So often we hear or read in the media that an individual is a ‘common-law husband or wife’ but is there such thing in English law?

Unfortunately not and the constant reference to this ‘myth’ simply exacerbates the misconception that, if an individual has been living with a partner for any length of time, they automatically have financial claims against their partner’s income and assets.

Sadly, it’s only when the relationship breaks down that many are faced with a very different reality.

The law is very clear: unless an individual is married or in a civil partnership, they do not have automatic rights to their partner’s income or assets.

As we know, society’s attitude towards marriage and cohabitation has changed over the decades, but the law has been slow to change with it.

There are more couples than ever living together as a family unit, often with children of the relationship, without any intention or desire to marry or enter into a formal contract just to show they are committed.

But, the reality is, in the absence of formal legal recognition, individuals have little, if any, protection if the relationship breaks down.

There have been too many occasions when a cohabitee has sought advice about the breakdown of their relationship only to find they are entitled to nothing.

Is there a way to protect yourself?

Whilst some might think it unromantic, individuals should consider having a cohabitation agreement setting out their understanding of the relationship and how both intend to treat income, expenses, pensions and what is to happen if they receive gifts, inheritance or acquire assets including property.

Whilst not providing automatic legal rights, it is evidence of your intentions and what you want and expect to happen if the relationship breaks down.

If there are any children of the relationship, there are at least some claims that can be made on their behalf. These include a claim for maintenance as well as a claim for housing for the children which might also have an indirect benefit for the parent with whom they are living.

If you are thinking of buying a property with your partner, try to ensure your name is on the legal title, regardless of your working status.

As can be seen, there is very little protection available to cohabitees and no legal recognition in law that an individual is either a common-law husband or wife with automatic financial rights.

If you are cohabiting or intend to cohabit and are making an investment in any relationship, do take legal advice and protect your position just in case things don’t go as planned.

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Written by

Vanda James

Partner