More couples than ever are choosing to live together without getting married. For many, cohabitation offers flexibility and avoids the expense of a wedding. However, while living together may feel no different to being married, the legal position can be very different.

One of the most common myths in family law is the belief in a "common law marriage". Many people assume that if they have lived with a partner for several years, they automatically acquire the same rights as a husband or wife. In England and Wales, this is simply not true.

Whether you are buying a home together, raising a family, planning for the future or considering what would happen if your relationship ended, understanding the legal distinction between marriage and cohabitation is essential.

Is Common Law Marriage Recognised in England and Wales?

No.

There is no legal status known as a "common law marriage" in England and Wales. Regardless of how long a couple has lived together, unmarried partners do not have the same legal protections and financial rights as married couples or civil partners.

This can come as a surprise to many people, particularly when relationships have lasted for many years or where couples share property, finances and children.

Understanding your legal position can help you make informed decisions and avoid unexpected difficulties in the future.

What Rights Do Unmarried Couples Have?

The legal position of cohabiting couples is often more limited than people realise.

Property Ownership

If you and your partner are buying a property together, it is important to carefully consider how the property will be owned. Questions to think about include:

• Will the property be owned by one person or both partners?
• If jointly owned, should it be held as joint tenants or tenants in common?
• Have you both contributed financially towards the purchase?

The way a property is owned can have significant consequences if the relationship breaks down.

As a general rule, legal ownership plays a key role in determining who is entitled to the value of the property. If a property is owned in one person's sole name, it may be presumed that they are entitled to the financial benefit of that property.

However, matters are not always straightforward. In some circumstances, a person who is not a legal owner may be able to establish an interest in a property. This may arise where they have made financial contributions towards the purchase, mortgage or improvement of the property, or where there is evidence of an agreement that they would share in its ownership.

These claims are often complex and are governed by trust and property law rather than family law.

What Happens if Unmarried Couples Separate?

Unlike married couples, cohabiting partners do not have automatic rights to seek a financial settlement from one another simply because the relationship has ended.

There is no equivalent to the divorce process for unmarried couples, and the court does not generally have the same powers to redistribute assets between cohabiting partners.

As a result, disputes regarding property and finances can often be more complicated and dependent on ownership and individual legal rights.

What Happens if My Partner Dies Without a Will?

This is another area where the differences between marriage and cohabitation become particularly important.

If an unmarried partner dies without leaving a valid Will, the surviving partner does not automatically inherit under the rules of intestacy, regardless of how long the couple have lived together.

In some cases, a surviving cohabitant may be able to bring a claim against the estate for financial provision, but such claims can be costly, time-consuming and emotionally challenging.

Having a professionally drafted Will is therefore an important step in protecting your loved ones and ensuring your wishes are carried out.

What Rights Do Married Couples Have?

Marriage creates a legal relationship that provides a much wider range of rights and protections.

Financial Claims on Divorce

If a marriage ends, the court has extensive powers when dealing with the parties' finances.

The court will consider a range of factors, including:

• The welfare of any children.
• The needs and resources of each party.
• The length of the marriage.
• The standard of living enjoyed during the marriage.
• Contributions made by each spouse.

The family home is only one part of the financial picture. The court can also consider:

• Savings and investments.
• Pensions.
• Business interests.
• Life insurance policies.
• Other assets accumulated during the marriage.

In many cases, the starting point is that matrimonial assets should be shared fairly, although the outcome will always depend on the specific circumstances of the family.

Rights in the Family Home

Even if the family home is owned in one spouse's sole name, the other spouse may still have legal rights in relation to that property.

This is a significant distinction from the position of many cohabiting couples, where legal ownership can play a much greater role in determining entitlement.

Inheritance Rights

If a married person dies without leaving a Will, their spouse is recognised under the intestacy rules and is entitled to inherit in accordance with the statutory provisions.

While having a Will is always advisable, marriage provides an additional layer of protection that is not available to unmarried couples.

How Can You Protect Yourself?

Regardless of your relationship status, there are steps you can take to provide certainty and protect your future.

Cohabitation Agreements

For couples who live together without marrying, a Cohabitation Agreement can clarify how assets, property and finances should be dealt with during the relationship and in the event of separation.

Such agreements can help minimise uncertainty and reduce the risk of disputes later.

Independent Legal Advice When Buying Property

Before purchasing a property with a partner, it is sensible to seek legal advice regarding ownership structures and the protection of any financial contributions being made.

Ensuring the legal documentation accurately reflects your intentions can prevent significant difficulties in the future.

Pre-Nuptial and Post-Nuptial Agreements

If you are planning to marry, or are already married, a Pre-Nuptial Agreement or Post-Nuptial Agreement may help provide clarity regarding how assets should be treated if the relationship breaks down.

While every case is different, these agreements are increasingly recognised as an important tool in family and wealth planning.

Looking Towards Future Reform

Successive governments and legal bodies have recognised concerns regarding the lack of legal protection available to many cohabiting couples. Discussions around reforming financial remedies on divorce and strengthening the rights of cohabitants continue.

However, until any legislative changes are introduced, the current legal framework remains in place. This means that understanding your rights and taking proactive steps to protect your interests is more important than ever.

Speak to Eaton Smith's Family Law Team

Every family is different, and the legal implications of marriage, cohabitation, property ownership and separation can be complex.

Whether you are moving in with a partner, purchasing a property together, considering a Cohabitation Agreement, planning a marriage, or navigating a separation, Eaton Smith's experienced Family Law team can provide clear, practical advice tailored to your circumstances.

To discuss your situation with one of our specialist Family Law Solicitors, contact Eaton Smith Solicitors today. Our team is here to help you protect your future and make informed decisions with confidence.