What are the rights of common-law marriage?

In our recent article ‘Living together, marriage and civil partnership: How are they different?‘ we mentioned common-law marriage, a term commonly used to refer to people who have lived together for a long time and who may have children, but have never married.

Many cohabiting couples believe they have roughly the same rights as a married couple or a pair of civil partners, but that is simply not the case. In fact, if an unmarried person dies, their long-term partner does not necessarily have a claim to their estate in the way that a spouse would.

But it’s not just upon death when this is an issue. If you separate from a cohabiting partner, you may have no claim to a share of their wealth or property, even if you have structured your relationship in such a way that they were responsible for most of the money.

This can be problematic for long-term cohabiting couples with children, because if the family home is only under your partner’s name, you could be forced to move out with very little income or savings.

How to prevent problems with common-law marriage

The obvious way to avoid problems with common-law marriage is to get married or enter into a civil partnership, but this in principle is a lifelong contract that should not be entered into lightly.

An alternative, which won’t see you needing to divorce if your relationship breaks down in the future, is to draw up a cohabitation agreement. This is a bit like a prenuptial arrangement and sets out mutually agreed commitments on things like division of finance and assets, if you decide to separate.

You should make clear that both parties are in full agreement on the terms, so that neither of you can dispute the contract later.

Also be aware that you can enter into a cohabitation agreement with anyone you live with, even if they are a platonic friend rather than a romantic partner, to protect your individual finances and quality of life if one of you chooses to move out.

Alternatives to cohabitation agreements

There are a few other alternatives to cohabitation agreements that can determine what happens to specific assets or to entire estates under different circumstances:

• A Will says where you want your money and possessions to go when you die, so the intestacy rules do not make that decision for you.
• A Declaration of Trust can set out proportional ownership of property, such as if you buy a house together but put in different amounts of capital.
• A Prenuptial Agreement is an arrangement laid out before you get married, if you want to commit to a division of assets that is different than you might normally expect to see during a divorce.

A mediator can help you to understand the different options open to you if you want to protect your finances, or if you want to ensure your partner will be well catered for under various future scenarios.

In particular, if you are cohabiting but are not married or joined in a civil partnership, and you do not have joint finances or joint ownership of the property, you should not hesitate to check your rights and make sure both parties are fairly protected for the future.