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Myth of the Common Law Marriage and Cohabitation Agreements

The cohabiting family is the fastest growing family type in England. Despite this, there are still currently no automatic legal rights afforded to unmarried couples who simply decide that marriage is not for them.

There are some significant legal differences between married and cohabiting couples, for example:

1. Upon marriage breakdown, the Courts have the power to divide the parties’ assets in a manner that is fair for both of them, taking into account a number of factors relating to their marriage. Unmarried cohabiting couples are not entitled to this option.

2. Parties to a marriage have an automatic right to remain living in the family home. Unmarried couples only have this right if their names are on a deed or rental agreement, or if they are able to obtain a Court order enabling them to do so. This is the case even if an unmarried partner has significantly contributed to the family home, but it is not in their legal name.

3. In the event of death of one cohabiting partner, the surviving partner does not automatically inherit anything, although a married partner would automatically inherit some, if not all of the deceased’s partners estate if they died intestate.

4. Married partners have a legal duty to financially support each other; unmarried couples do not have this same obligation placed on them.

5. Married couples may automatically receive certain financial benefits upon their spouse’s death, such as where there are pensions or life insurance, which unmarried couples could not be eligible for.

One common misconception is the existence of what is known as the ‘common law marriage’ – the idea that couples who have been in a long standing relationship, who live together and/or have children together, are entitled to rights similar to those of married couples. Unfortunately, there is no legal status for the common law marriage, which is a shame given the huge shift in the dynamic of families and relationships in recent times and changing family structures. There have been a number of calls for revision of this area of law although to date, nothing has been fully executed.

Although there are no automatic legal rights for cohabitees, this isn’t to say that there is nothing in place to offer them some form of protection. The current state of the law simply means that cohabiting couple are required to be more proactive and to consider things such as cohabitation agreements if they want to try and protect themselves financially. This is an agreement for couples, who live together, but are unmarried and which sets out the parties intentions regarding finances and arrangements for children, throughout the duration of the relationship and in the event that the relationship was to break down. Cohabitation agreements are legally binding and regulated by the law of contract. You should seek legal advice before entering into one and our experienced team are able to assist with this.

Novlet Levy
Trainee Solicitor

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Step No: 76

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