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The common law marriage myth
01 Nov 2017

Living in sin, over the brush or cohabiting - whatever you want to call it, the number of people choosing to live together without being married is on the rise.


In fact, it’s the fastest growing family type, more than doubling from 1.5 million families to 3.3 million families between 1996 and 2016. That’s 9.8 per cent of the population of England and Wales, up from 6.8 per cent in 2002.

But many people still have misconceptions about the legal status of living together. Emma Smith, a family solicitor from FBC Manby Bowdler, dispels some of the “common law marriage” myths:

Being a family lawyer, I get frustrated when I hear people talking about being someone’s “common law husband or wife” – it gives the indication that you’ll get some sort of protection under matrimonial law if you decide to go your separate ways.

In reality, there’s no such thing. People who live together don’t have the same rights as married couples when they separate, irrespective of how long they have lived together, whether they own property or whether they have children.

If they do split up, cohabitees have to rely on Land Law and Trust Law to determine what should happen to any assets they own and those laws are complex. Contributions or intentions – for instance, if one partner gave all the deposit to buy a house - may not always be taken into account.

Adding children to the mix can cause further complications when it comes to splitting a major asset such as property.  The parent with care of the children could make an application under Schedule 1 of the Children Act 1989 for financial provision, which could mean they are able to retain the house until the youngest child is 18, following which each party will be able to have their share back.

Other items like cars or the contents of your home such as televisions, laptops, sofas or even pets belong to the person who purchased them or are owned in the shares that each party contributed if purchased jointly. This can further complicate matters if your split is acrimonious and division of the contents is best resolved by negotiation.

Importantly, cohabitees don’t have automatic rights of inheritance if their partner dies. If you want your partner to be provided for if you die, you have to make a Will. Otherwise the surviving person could have to make a costly application under the Inheritance (Provision for Family and Dependents) Act.

All of these difficulties and potential expense can be avoided by entering into a Cohabitation Agreement or Declaration of Trust when you move in together. That will document what should happen if the relationship breaks down and potentially save you money and further heartache in the long run.

If the relationship has ended and you don’t have one of these documents in place, it is still possible to come to a sensible agreement but is worthwhile seeking some legal advice from an experienced and reputable family solicitor to see where you stand.

Emma advises on all family matters including divorce, cohabitation, financial matters and disputes involving children. If you are affected by the above or have a family matter, contact Emma on 01952 208408 or

Meet Emma Smith