The Myth of the Common Law Marriage

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This week there is much in the news about the myth of the “common law marriage”. Our Family law director, Laura Clapton explains why.


It is a longstanding myth that an unmarried couple have the same or similar rights to that of a married couple. This is simply not the case and many individuals who are cohabitating with a partner can find themselves in a vulnerable position should the relationship breakdown. This week, the organisation Resolution, whose members consist of family law practitioners throughout the country, are campaigning to raise public awareness of the gap in the law when it comes to providing for legal rights and responsibilities for unmarried couples. Resolution seek reform in this area of law to provide for more rights for those couples who are in a committed relationship but who choose not to marry.


In England and Wales, when a married couple separate and one of the parties to the marriage issues divorce proceedings, this opens up their financial claims which they can make against their spouse on divorce. The court has the power to make a number of orders regarding property and finances including the division of property, pensions and whether there is to be any ongoing maintenance paid from one to the other not only for the benefit of the children but for the benefit of their spouse. The court’s power to make such orders is governed by the Matrimonial Causes Act 1973. Mirror provisions are provided for those who are in a civil partnership under the Civil Partnership Act 2004.


There are no such parallel legal rights for those separating couples who are unmarried. In England and Wales, cohabiting couples have no rights or responsibilities in relation to the other upon separation. Any rights which a person may have upon separation are limited to those which they can establish under the laws of property and trusts and any rights which they have on behalf of their children.


Many legal professionals, politicians and members of the public believe that the law needs to change as the current laws are outdated and do not reflect a society where many couples are choosing not to marry.


If you are living with a partner but unmarried and you wish to put some protective measures in place or you have separated from your ex-partner and want to understand your legal rights please contact our specialist family team on 0113 322 9222 or laura@consilialegal.co.uk.

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