The Myth of Common Law Marriage: What Unmarried Couples in England Really Have (and Don't Have)

Ask around any dinner party and you will find someone who is confident that living with a partner for a certain number of years — five, they say, or seven — makes you 'common law married'. It is one of the most persistent legal myths in England and Wales, and it has real consequences. When an unmarried couple separates, or when one partner dies without a will, the person left behind often discovers too late that the law treats them as a near-stranger.

There is no such thing as common law marriage in English law. Not after two years, not after twenty. If you are not married and not in a civil partnership, family law offers you almost none of the protections that spouses take for granted.

What Spouses Get That Cohabitees Don't

The gap is wider than most people imagine. A married couple who separate can ask a court to divide assets fairly — including pensions, savings held in one name, and property acquired during the relationship. An unmarried couple has no equivalent. Each person generally keeps what is legally theirs, and that is the end of it.

Consider some examples we see regularly:

• The stay-at-home partner. One person gives up work to raise children while the other builds a career, pays the mortgage and accrues a pension. On separation, the partner who stayed home has no automatic claim to that pension or to compensation for lost earnings.
• The house in one name. If the family home is registered solely to one partner, the other has no automatic right to a share of it — even if they contributed to the mortgage, paid for the extension or gave up their own home to move in.
• Death without a will. If a partner dies intestate, their estate passes under the intestacy rules — which make no provision for unmarried partners at all. The surviving partner must make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, at a cost, with no guarantee of success, while potentially facing the deceased's family in court.

The House: Beneficial Interest Explained

Where the family home is concerned, an unmarried partner is not entirely without remedy — but the route is technical. It involves proving what lawyers call a beneficial interest in the property.

In plain terms, the legal owner on the title deeds may not be the only person the law recognises as owning the property. If you can show that there was a common intention that you would have a share, and that you relied on that intention to your detriment — say, by contributing directly to the purchase price, paying substantial mortgage instalments, or funding major renovations — you may be able to establish a claim.

The difficulty is evidence. These cases turn on what was said years ago, on bank statements and on the credibility of each side. Litigation under the law of trusts (principally the Trusts of Land and Appointment of Trustees Act 1996) is slow, expensive and emotionally draining. Winning is possible; it is rarely easy.

The Cohabitation Agreement: A Cheaper Alternative to a Court Fight

The simplest way to avoid all of this is to agree the position in advance. A cohabitation agreement is a written document, prepared by a solicitor, that records:

• who owns what, and in what shares;
• how household bills, the mortgage and deposits are shared;
• what happens to property and savings if you separate; and
• how you will deal with joint purchases, debts and any children's arrangements.

Courts are generally willing to uphold properly drafted agreements, provided both parties entered into them freely, with full financial disclosure and, ideally, independent legal advice. Compared with contested litigation, the cost of preparing one is modest — a fraction of what a property dispute costs.

A Will Is Not Optional

We have written before about the risks of home-made wills, but for cohabiting couples the stakes are higher still. Without a valid will, your partner inherits nothing under the intestacy rules — not the house, not your savings, not your half of the joint account (which, incidentally, may pass by survivorship, but often not the rest).

A professionally drafted will, reviewed whenever circumstances change, is the single most important document an unmarried couple can have. It should be paired with a conversation about lasting powers of attorney, so that a partner can manage finances or make welfare decisions if the other loses capacity — something spouses can do automatically, and cohabitees cannot.

Practical Steps to Take Now

If you live with a partner and neither marriage nor civil partnership is on the horizon, consider the following:

1. Put the property position in writing. If you are buying together, decide — and record — whether you hold the property as joint tenants or tenants in common, and in what shares. A declaration of trust can make this watertight.
2. Sign a cohabitation agreement while relations are good. These documents are almost impossible to negotiate after a relationship has broken down.
3. Make mirror wills, naming each other and dealing with what happens if you both die together.
4. Check pension nominations. Many workplace and personal pensions allow you to nominate a beneficiary — but only if you tell the scheme.
5. Keep records of contributions to property and major purchases if no agreement is in place.

How We Can Help

At Alan Curtis Legal, we advise cohabiting couples on every aspect of the position described above — from drafting declarations of trust and cohabitation agreements to preparing wills and, where relationships have already ended, resolving property disputes in a practical, cost-conscious way.

The law may not recognise your relationship, but it will recognise the documents you put in place. If you would like to discuss your circumstances in confidence, contact us for an initial conversation.

This article is for general information only and does not constitute legal advice. You should take advice on your own specific circumstances.