The institution of marriage has evolved over the years, and in the United Kingdom, there has been a significant increase in the number of couples who choose to cohabit without getting married. Common law marriage is a term that has been used to describe such unions, where couples who live together for a long time and present themselves as married may be considered as such in the eyes of the law.

Despite popular belief, common law marriage is not legally recognised in the UK, and couples who live together without getting married do not have the same legal rights as married couples. This has led to confusion and misconceptions surrounding the legal status of common law marriage in the UK.

This article will provide an in-depth look at common law marriage in the context of UK family law, examining its historical background, current legal status, and implications for couples who choose to cohabit without getting married. It will also explore the factors that can be considered in determining the existence of a common law marriage and the legal options available to unmarried couples. By the end of this article, readers will have a better understanding of common law marriage in the UK and the legal implications of cohabitation without marriage.

Introduction

Common law marriage is a term used to describe a long-term cohabiting relationship where a couple lives together and presents themselves as married, without actually being legally married. It is also sometimes referred to as “marriage by habit and repute”. In the UK, the term “common law marriage” is often used colloquially to describe the legal status of couples who live together as if married, but there is no such legal recognition of the concept under UK law.

Despite the lack of legal recognition, common law marriage is still a relevant topic in the UK because it affects a significant number of couples who choose to cohabit rather than get married. In fact, according to the Office for National Statistics, the number of cohabiting couples in the UK has doubled over the last two decades, with over 3.4 million couples living together in 2021.

This increase in cohabitation has led to many misconceptions surrounding the legal status of common law marriage, with many couples believing they have the same rights and responsibilities as married couples. This has created a need for greater clarity and understanding of the legal position of cohabiting couples in the UK.

Historical Background of Common Law Marriage in the UK:

Common law marriage is an old concept in the UK, and its recognition has evolved over the years. The term “common law marriage” originally referred to a type of marriage that was not formalised by a religious or civil ceremony, but rather established by the mutual consent of the parties involved.

The recognition of common law marriage in the UK dates back to medieval times, where it was seen as a valid and legally binding union. The main reason for recognising common law marriage at that time was that it provided a legal framework for regulating property rights and inheritance. Common law marriage allowed for property and wealth to be passed on to the surviving partner, and it also allowed for the legitimate status of any children born out of the relationship.

Over time, the recognition of common law marriage in the UK began to decline, and by the 18th and 19th centuries, it had lost most of its legal recognition. The gradual decline in recognition was due to various factors, including the growth of industrialisation, the rise of individualism, and the increasing role of the state in regulating personal relationships. By the 20th century, the legal status of common law marriage in the UK had been significantly reduced, with only a few limited rights recognised for cohabiting couples.

Today, common law marriage is not legally recognised in the UK, and cohabiting couples do not have the same legal rights as married couples. Despite this, many people still believe that they are in a common law marriage and have the same legal rights and responsibilities as married couples. The lack of legal recognition of common law marriage in the UK has created confusion and misunderstandings surrounding the rights of cohabiting couples, which we will explore further in this article.

The Current Legal Status of Common Law Marriage in the UK:

Despite its historical recognition, common law marriage is not legally recognised in the UK. This means that cohabiting couples who are not married do not have the same legal rights and responsibilities as married couples.

Under current UK law, cohabiting couples do not have any automatic rights to each other’s property, finances, or pensions, regardless of how long they have been living together. This means that if a cohabiting couple separates, they will need to rely on complex and often costly legal proceedings to resolve any property or financial disputes.

In terms of children, cohabiting couples have the same rights and responsibilities as married couples in relation to their children. This means that both parents have equal parental responsibility for their children, and both parents have the right to be involved in important decisions relating to their children’s upbringing.

However, there are some important differences between the legal rights and responsibilities of married couples and cohabiting couples. For example, married couples have automatic inheritance rights, which means that if one partner dies, their spouse will inherit their assets unless a valid will says otherwise. Cohabiting couples, on the other hand, do not have this automatic right, and the surviving partner will have to rely on the laws of intestacy to claim any inheritance.

Additionally, married couples have automatic rights to spousal support and maintenance if they divorce, whereas cohabiting couples do not have the same automatic rights to financial support. In cases of separation, cohabiting couples may need to rely on complex legal proceedings to resolve any disputes over property, finances, or children.

Establishing a Common Law Marriage in the UK:

In the absence of legal recognition of common law marriage in the UK, determining the existence of a common law marriage can be a complex process. While there is no one definitive test to determine whether a couple is in a common law marriage, there are a number of factors that may be considered by a court, including:

• The length of the relationship
• Whether the couple live together
• Whether they have children together
• Whether they present themselves as a couple in public
• Whether they share finances, such as joint bank accounts or bills
• Whether they have made any formal commitments, such as a cohabitation agreement or will

It is important to note that each case will be considered on its own facts, and there is no guarantee that a court will find that a common law marriage exists.

To avoid any potential legal disputes, many cohabiting couples choose to enter into a cohabitation agreement. A cohabitation agreement is a legally binding document that sets out the rights and responsibilities of each partner in the event of a separation or death. It can cover issues such as property ownership, financial arrangements, and arrangements for any children of the relationship.

Alternatively, unmarried couples can also consider other legal options to protect their interests, such as a declaration of trust, which sets out the ownership of property, or a parenting agreement, which sets out arrangements for children. It is important to seek legal advice from a qualified family solicitor when considering any of these options to ensure that they are appropriate for your individual circumstances.

The Implications of Common Law Marriage in the UK:

The lack of legal recognition of common law marriage in the UK can have significant implications for cohabiting couples, particularly in relation to finances and inheritance.

The potential financial consequences of common law marriage

One of the main implications of common law marriage in the UK is that cohabiting couples do not have automatic rights to each other’s finances and property. This can have significant financial consequences in the event of a separation or death.

For example, if one partner dies without a valid will, their assets will be distributed according to the laws of intestacy, which may not reflect their wishes or the needs of their partner. Similarly, if a couple separates, there is no legal requirement for one partner to provide financial support to the other, which can leave the financially weaker partner vulnerable.

The implications of common law marriage on inheritance

Another important implication of common law marriage in the UK is the impact on inheritance. Under the laws of intestacy, unmarried partners are not entitled to inherit from each other, even if they have been living together for many years. This means that if one partner dies without a will, their assets may be distributed to their family rather than their partner.

However, it is possible for cohabiting couples to make provision for each other in their wills. This can include leaving specific assets or a share of their estate to their partner, or setting up a trust to provide ongoing support.

The importance of making a will

Given the potential financial and inheritance implications of common law marriage in the UK, it is important for cohabiting couples to make a will to ensure that their wishes are reflected in the event of a separation or death. This can include setting out how assets will be distributed, providing for any children of the relationship, and making provisions for each other in the event of death.

In summary, the lack of legal recognition of common law marriage in the UK can have significant implications for cohabiting couples in relation to finances and inheritance. It is important for couples to make a will to ensure that their wishes are reflected and to consider other legal options, such as a cohabitation agreement, to protect their interests.

Conclusion

In the UK, common law marriage is not a legally recognised status, and cohabiting couples do not have the same rights and responsibilities as married couples. While this can leave cohabiting couples vulnerable in the event of a separation or death, there are legal options available to protect their interests, such as a cohabitation agreement, a declaration of trust, or a parenting agreement.

It is important for cohabiting couples to understand the implications of common law marriage on their finances and inheritance and to take steps to protect their interests, such as making a will. Seeking legal advice can help cohabiting couples to understand their options and to ensure that they are taking the necessary steps to protect their interests.

In conclusion, while common law marriage is not recognised in the UK, cohabiting couples have legal options available to them to protect their interests and ensure that their wishes are reflected in the event of a separation or death. By taking the necessary steps to protect their interests, cohabiting couples can minimise the potential financial and emotional consequences of a relationship breakdown.