Cohabitation and common law marriage

Private client team with Natalie Thomas - Associate Solicitor, DJM Solicitors

Many couples believe that moving in together creates a common law marriage, giving you the same rights as if you were married. It does not, the concept of common law marriage has no legal validity in the UK.

In reality, moving in together does not give you automatic rights to each other’s property, no matter how long you live together.

Conversely, however, if a cohabiting couple separates and there are children involved, both cohabiting partners may have rights and responsibilities.

Problems can occur, particularly when one of you moves into a property the other owns or rents. The property owner is the only one entitled to live there, anyone else can be asked to leave.

Owning a property in joint names can help to protect the rights of both cohabiting partners, but there are potential pitfalls.

For example:

  • you cannot force your partner to sell the home if you decide to leave, unless you apply for a court order;
  • even if you contributed most of the costs of buying the home, you would normally only be entitled to a half share unless you have agreed otherwise;
  • if your partner walks out on you, you are likely to be liable for the full amount of any mortgage payments.

Cohabiting couples have no legal duty to support each other financially, either while you are living together or if you separate. Nor do you automatically share ownership of your possessions, savings, investments and so on.

Cohabiting partners have no automatic right to inherit if their partner dies, although they may be a beneficiary under the other’s will. If you are a beneficiary, any assets you receive may be subject to inheritance tax – there is no exemption for unmarried couples.

If you have lived together ‘as man and wife’ for at least two years or if you can show that you were financially dependent on your partner, you can make a claim for a financial settlement even if you were not a beneficiary of the will. However, making a claim can involve a complex and expensive dispute with the other beneficiaries.

If you owned your home together, the form of legal ownership has a major impact. If you owned your home as ‘joint tenants’, you will automatically continue to own the (entire) home if your partner dies. But if you were ‘tenants in common’, your partner’s share is dealt with under the terms of his or her will.

Written agreements can help to protect you from potential risks if you separate or your partner dies.

Please speak to our Miss Natalie Thomas if you wish to discuss this further

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