What is a common law marriage?
Common law marriage is a term often used to describe a situation where a couple lives together for a long time without being married or in a civil partnership.
In some countries, common law marriage is legally recognised, meaning the couple has similar rights, protections and obligations as a legally married couple, even if they never had a wedding. For example, certain US states (eg Colorado) recognise common law marriage, meaning that unmarried couples who meet specific criteria can enjoy many of the same legal benefits as married couples.
What is a common law partner?
A common law partner is someone who lives with another person (ie cohabits with them) in a relationship similar to marriage but without formally being married.
The terms ‘common law partner’, ‘common law spouse’, ‘common law wife’ and ‘common law husband’ are often used interchangeably. The term ‘cohabitee’ is also used to describe such individuals.
Are common law marriages legally recognised in the UK?
There is a common misconception that common law marriages are legally recognised in the UK, but this is not the case. Unmarried couples that live together, even if they have lived together for many years, do not have the same legal rights, protections and responsibilities as married couples.
A couple may be referred to as being in a common law marriage when they have lived together and present themselves as spouses. However, such living arrangements do not confer any of the legal rights, protections and responsibilities of a formal marriage.
England and Wales
In England and Wales, cohabiting couples (ie couples who live together without being married) are treated as separate individuals and are not awarded special legal status.
Scotland
In Scotland, common law marriage was abolished in 2006 under the Family Law (Scotland) Act 2006. Before 2006, a type of irregular marriage called 'marriage by cohabitation with habit and repute' was available to couples who had lived together and were thought to be married.
It may still be possible for opposite-sex couples to have a marriage by cohabitation with habit and repute recognised if their relationship met certain criteria before the law was changed in 2006 (ie the irregular marriage must have met certain criteria before 4 May 2006). Establishing a marriage by cohabitation with habit and repute involves making an application to the courts and is very rare. Ask a lawyer if you have any questions about marriage by cohabitation with habit and repute.
Aside from the above, cohabiting couples are not awarded special legal status in Scotland.
For more information on living with your unmarried partner in England, Wales or Scotland, read Cohabitation.
What rights do common law partners have?
As common law marriages are not recognised in the UK, common law partners do not have rights similar to those of married couples. This means that cohabiting does not create any automatic legal rights, regardless of how long a couple has been living together. In practice, this means that:
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cohabiting couples do not have the same property rights as married couples
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there is no entitlement to financial support in the event of a breakup
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there is no automatic entitlement to inherit a deceased partner’s assets (unless the surviving partner is mentioned in a will). The rules of intestacy for England and Wales do not make any special provision for unmarried partners. Under the rules of intestacy for Scotland, unmarried partners can apply to the courts for a share of their deceased partner’s estate (ie their property), but this process may be long and arduous
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while cohabiting parents have financial responsibilities for their children in England, Wales and Scotland, cohabitation does not automatically confer parental responsibility to fathers or second female partners
How can common law partners protect themselves?
Couples who live together without being married can take certain steps to protect themselves and their assets. These include:
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entering into Cohabitation agreements to outline and agree on the couple's rights and responsibilities towards each other in case of a separation. For more information, read Cohabitation
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making Last wills and testaments for England and Wales or Scotland to ensure assets are inherited in accordance with the couple’s wishes. You can also use our Will drafting service if you want a bespoke will. For more information, read Reasons to make a will
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entering into Declarations of trust when buying property to ensure everyone’s contributions are recorded, and the property’s ownership shares are documented. For more information, read Declaration of trust for property
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making sure parental responsibility for a child is conferred on both parents, either by naming the father on the birth certificate (in England and Wales), the father jointly registering the child’s birth with the birth mother (in Scotland) or by entering into a Parental responsibility agreement. For more information, read Parental responsibility
Read Cohabitation to learn more about living with your unmarried partner and consider making a Cohabitation agreement to protect yourself and your partner. Use our Cohabitation legal advice service to receive independent legal advice on your cohabitation agreement.
For more information on the rights, responsibilities and protections awarded to married couples or couples in civil partnerships, read Getting married, Getting married in Scotland, Registering a civil partnership and Considerations before getting married or forming a civil partnership.
Ask a lawyer if you have any questions or concerns about cohabitation, entering into a cohabitation agreement, or your rights and responsibilities as unmarried partners living together.
