Common Law Marriage — The Myth That's Costing Cohabiting Couples Thousands
Over half of UK adults believe that living with a partner for long enough creates a 'common law marriage' that gives them the same legal rights as a married couple. This belief is completely wrong — and it is costing cohabiting couples their homes, their savings, and their financial security every single day. Here is the truth, and what you can do about it.
"We've lived together for years — we have the same rights as a married couple."
There is no such thing as "common law marriage" in England and Wales. Unmarried couples — however long they have lived together — have almost no automatic legal rights over each other's property, finances, or inheritance when the relationship ends or one partner dies.
Where Does the Myth Come From?
The idea of "common law marriage" has deep historical roots — it was once recognised in England, but was abolished by the Clandestine Marriages Act 1753, nearly 270 years ago. It persists today largely through cultural myth, informal language, and — crucially — because cohabiting couples assume the law must surely have kept up with the dramatic rise in cohabitation. It hasn't. Around 3.6 million couples in England and Wales cohabit, and a majority incorrectly believe they have legal protections they do not have.
Research by the Nuffield Foundation has repeatedly found that over half of UK adults believe common law marriage exists and gives cohabiting couples legal rights equivalent to marriage. This misconception is not just harmless — it causes real financial devastation when relationships end or a partner dies.
What Rights Do Married Couples Have That Cohabiting Couples Don't?
On Separation
When a married couple divorces, the court has wide powers under the Matrimonial Causes Act 1973 to redistribute all the assets of both parties — regardless of whose name they are in. The court considers contributions (financial and non-financial), the needs of both parties and any children, the length of the marriage, and the standard of living enjoyed. An equal split of the "matrimonial pot" is the starting point.
When an unmarried couple separates, the court has no such powers. Each person generally walks away with what is in their own name. If your partner owns the house and you have been living in it for ten years, contributing to the mortgage and raising children, you may still have no legal right to a share — unless you can establish a legal or beneficial interest through a claim in the civil courts under trust law.
On Death Without a Will
If your married partner dies without a will, you automatically inherit under the Intestacy Rules (Administration of Estates Act 1925). If your unmarried partner dies without a will, you inherit nothing — regardless of how long you lived together or what you contributed to the relationship. The estate passes to their blood relatives: children, parents, siblings. A long-term cohabiting partner has no automatic right to anything.
Even if your partner makes a will and leaves everything to you, there is a risk that their relatives could challenge it under the Inheritance (Provision for Family and Dependants) Act 1975 — though a financially dependent cohabiting partner of at least two years can make a claim under that Act.
Pension Rights
Many workplace pension schemes will only pay a survivor's pension to a spouse or civil partner — not to an unmarried partner. Even where the scheme rules permit it, payment is typically at the trustees' discretion. A married spouse has a legal entitlement to a widow's or widower's pension from most defined benefit (final salary) schemes. An unmarried partner may receive nothing, depending on the scheme rules and the nomination of beneficiary form.
State Benefits and Tax
Married couples and civil partners can transfer their unused personal allowance (Marriage Allowance), transfer assets between each other free of Capital Gains Tax, and benefit from the spousal exemption from Inheritance Tax. Unmarried partners have none of these advantages.
What Unmarried Couples Can Do to Protect Themselves
The law may not protect you automatically — but you can take steps to create legal protection:
1. Make Wills — Both of You, Now
This is the single most important step. A will allows you to leave your estate to your partner. Without one, they get nothing under the intestacy rules. Both partners should make wills, keep them up to date (especially after children are born), and store them safely. A basic will from a solicitor typically costs £150–£300.
2. Create a Cohabitation Agreement
A cohabitation agreement (also called a living-together agreement) is a legal contract between you and your partner that sets out how assets, finances, and property will be dealt with while you live together and if you separate. It can specify: who owns what share of the property, how joint expenses are split, what happens to jointly owned assets on separation, and financial support arrangements. A well-drafted agreement, made with legal advice, is generally enforceable as a contract.
3. Register the Property Correctly
If you jointly own property, the Land Registry title will show whether you hold it as "joint tenants" (each owns the whole — survivor inherits automatically on death) or "tenants in common" (each owns a defined share — your share passes under your will or intestacy). Tenants in common is usually more appropriate where partners own unequal shares or want to leave their share to someone other than each other. You can change the type of ownership by a "severance of joint tenancy" — a straightforward legal step.
4. Make Lasting Powers of Attorney
If you lose mental capacity, your unmarried partner has no automatic right to make decisions for you — about your finances, your medical treatment, or your care. Only a registered Lasting Power of Attorney (LPA) gives them that right. Without one, they may have to apply to the Court of Protection for a Deputyship Order — an expensive and time-consuming process.
5. Nominate Your Partner for Pension Death Benefits
Check the "expression of wishes" or "nomination of beneficiary" form for every pension you hold — including workplace pensions — and nominate your partner. While trustees are not legally bound by nominations, they almost always follow them. Update the nomination when your circumstances change.
6. Consider Trusts for Property
If one partner owns the home and the other contributes financially, a Declaration of Trust can formally record each partner's beneficial interest in the property. This creates a legal record that can be relied upon if the relationship ends or the owner dies.
What If the Relationship Has Already Broken Down?
If you have separated from an unmarried partner and you believe you have a financial claim, the law does provide some limited remedies — but they are much harder to establish than in divorce proceedings:
- TOLATA claim — under the Trusts of Land and Appointment of Trustees Act 1996, you can ask the civil court to declare your beneficial interest in property. You must establish a constructive or resulting trust — typically by proving a common intention that you would share the property, and that you acted to your detriment in reliance on that intention.
- Proprietary estoppel — where you can show that you were led to believe you had rights over property, acted on that belief to your detriment, and it would be unconscionable for the other party to go back on the representation.
- Inheritance Act claim — if your partner has died without adequate provision for you, and you cohabited for at least two years before their death, you may be able to claim reasonable financial provision from their estate under the 1975 Act. Claims must be brought within six months of the grant of probate.