The legal differences between co-habiting and married couples

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Recently, the Law Society’s Solicitor Chat on Twitter was focusing on common law marriage and the difference between the rights of cohabiting couples and married couples. We have summarised the important points below.

What is Common Law marriage?

Is common law marriage a myth? Sadly, yes. People sometimes assume that as they have lived together as man and wife in a long-term relationship that they have legal rights like married couples. However, they may find that, on separation, one partner can be significantly disadvantaged. Although some common law principles will apply to cohabiting couples, they certainty do not enjoy the same rights and protection that are given to married couples. So, there is no common law relationship or common law marital status, a better term would be ‘cohabiting relationship’. Legally, the term ‘spouse’ only applies to people who are married so you cannot be a common law spouse.

What rights do unmarried couples have and how do they differ from married couples?

Unmarried couples do not currently have the same rights as married couples. They are not automatically entitled to any property owned by their partner, nor would they be entitled, for example, to spousal maintenance in the event of a relationship breakdown. You are not automatically entitled to a share of your partner’s property. There is no legal obligation for cohabiting couples to support each other financially, whereas married partners do have a legal duty to support each other.

However, child maintenance is still available as it is intended for the benefit of the child or children of the couple.  However long you have lived with your partner does not guarantee you a share of your former partner’s property or family home but even if you are not the legal owner, you may be able to convince a court to give you a share if you can prove that you contributed financially towards the family home and agreed that you should have a financial interest in it and relied upon that to your detriment.

Can I be responsible for my partner’s debts?

No, you can only be responsible for your debts if you have signed a contract. If you did not sign, then you are not liable.

Can you claim pension benefits as a cohabiting partner?

You may be eligible for dependent’s or survivor’s benefits of your partner’s pension.

What should unmarried parents be aware of?

Although unmarried mothers automatically acquire parental responsibility for a child, unmarried fathers do not acquire parental responsibility for a child unless that father is named as the child’s father on the child’s birth certificate, by virtue of a court order or by virtue of an official agreement between the parties. Couples should be aware that a father who is not named on a child’s birth certificate will not have parental responsibility for the child. It is important that unmarried fathers consider seeking parental responsibility.

What is a co-habitation agreement and how can it help unmarried couples?

A cohabitation agreement is a written document, drawn up between a couple who have agreed to live together. It can set out what they have agreed regarding one another’s rights and responsibilities in relation to the property where they live or intend to live together. It can also detail the financial arrangements between them during the time they live together and what the financial arrangements will be if they were to separate.

A cohabitation agreement can make all the difference should an unmarried couple separate as it would set out who owns what and in what proportion (and how it would be divided in the event of a separation).

Are there any other measures cohabiting couples can put in place to protect themselves if they split up or one of them dies?

It is always important to have a Will and a Power of Attorney in place in relation to both financial affairs. These should be reviewed regularly and particularly considering any changes in relationship status or personal circumstances. Independent financial advice is also recommended when looking at life insurance and critical illness.

For property, a declaration of trust is recommended to set out the ownership both legally and beneficially. Cohabiting couples also have no automatic right of inheritance should their partner die, so a will is very important to have in place.


If you would like to find out more or need help with a relationship breakdown, please contact our family lawyers on Llandudno 874774 or Conwy 596596