Common Law Marriage - A common mistake

June 23, 2016


The cohabiting couple family is the fastest growing family type in the UK with over 3.2 million couples cohabiting as of 2015. Despite the increase in the number of couples choosing to live together without getting married, there is a lack of awareness about the protection offered by the law, and the risks that cohabitees could face. For example, many people still believe in the fictional concept of the ‘common law marriage’, a description for a long term cohabitation arrangement, to all intents and purposes a marriage, which must surely, they think, give rise to the same legal rights that married couples enjoy. 


The reality is very different. The law offers protection to married couples who have decided to separate, to assist them in disentangling their lives and finances. In the case of cohabiting couples, however, there are dramatically fewer legal territories. Reports commissioned by the government which recommended an update to the law on cohabitation, to bring it in line with changing social attitudes, have,to date, not led to any changes in the law. There is currently a private members bill before parliament but it has got ‘stuck’ and doesn’t look like becoming law any time soon. It’s therefore really important that you, as cohabiting couples, take the steps to protect yourselves, and your families, in the event that the arrangement breaks down.


A cohabitation agreement is a contractual agreement that can be drawn up to record your intentions regarding your rights and responsibilities in relation to your property and how finances and other household matters will be arranged between you. Provisions can be made for the duration of the relationship but also for the event (however unlikely it may seem at the time!) that you decide you no longer want to live together.


It can be awkward (and very un-romantic) discussing and planning for difficult times and the possibility of a break-up right at the start of a relationship. However, the security and certainty that comes with forward planning of this kind is far, far better than the costs (both financially and emotionally) where agreement can’t be reached following separation. Think of it as an insurance policy of the same kind you would have for a brand new car – you’d hope the car wouldn’t be damaged or destroyed but it’s reassuring to know that it’s insured, just in case.


Examples of provisions which can be included in a cohabitation agreement are:-

  • Rights and responsibilities in respect of any property – for example who will be responsible for the mortgage re-payments on the property and how much will each party be entitled to on sale?
  • Personal property – who owns the family car, the washing machine and the priceless art hanging on the walls?
  • Financial support to be made for any children of the relationship, both during and/or after the period of cohabitation.


The law urgently needs to be changed – there are things that cannot be resolved by a cohabitation agreement, for example, entitlements to a pension share and non-child maintenance post-separation. However, the courts are making it increasingly clear that cohabitation agreements are, and should be, enforceable as a matter of course. Therefore, until a change to the law is made, a well-planned future (which contemplates that things aren’t always smooth sailing) could be your only safe guard.