Kara Sears
The concept of common-law marriage refers to a marriage-like relationship between two people who live together for a certain period of time without getting married or registering their partnership formally. While this type of arrangement is recognised in some countries, it does not have legal recognition in the UK. This means that cohabiting couples in the UK do not automatically have the same legal rights and protections as married or civil-partnered couples. However, there are steps that cohabiting couples in the UK can take to protect themselves and their assets, such as creating a cohabitation agreement or a will.
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What You'll Learn
Common-law marriage is not legally recognised in the UK
The concept of common-law marriage refers to a marriage-like relationship between two people who live together for a certain period of time without getting married or registering their partnership formally. While this type of arrangement is recognised in some countries, it is important to note that common-law marriage is not legally recognised in the UK. This means that couples who live together without a formal marriage or civil partnership do not have the same legal rights and protections as married or civil-partnered couples.
In the UK, common-law marriage is not considered a legal status, and cohabiting partners do not automatically have financial protection or the same legal rights as married couples. For example, in the event of a split or the death of one partner, the surviving partner may not automatically inherit their partner's assets or property if they do not have a will in place. This is because, unlike in a marriage or civil partnership, common-law partners are considered "unconnected individuals" by HMRC and are unable to claim certain tax reliefs and entitlements.
While common-law marriage is not legally recognised in the UK, there are steps that cohabiting couples can take to protect themselves and their assets. One option is to create a cohabitation agreement, also known as a living together agreement, which outlines the rights and obligations of each partner towards each other in the event of separation or death. This can include finances, property, and arrangements for any children. Another option is to establish joint ownership of property, ensuring that both partners have a legal stake in the home they share.
It is worth noting that, while common-law marriage is not legally recognised, cohabiting couples do have some legal protections in specific areas. For example, under the law relating to domestic abuse, both married and cohabiting couples are protected. Additionally, in Scotland, cohabiting partners may have limited claims against each other in the event of a relationship breakdown or the death of a partner. However, it is always advisable for cohabiting couples to seek legal advice to understand their specific legal rights and obligations.
Furthermore, while common-law marriage is not legally recognised in the UK, the number of couples choosing to live together without getting married or entering a civil partnership has significantly increased. Between 1996 and 2021, the number of cohabiting couples in the UK rose by 144%. This highlights a growing trend towards non-marital relationships and the importance of understanding the legal implications of common-law marriages.
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Common-law partners have limited legal rights
In the UK, common-law marriage is not legally recognised. This means that common-law partners do not have the same rights as married couples. These limited legal rights include rights to property, inheritance, and finances.
Cohabiting couples are considered "unconnected individuals" by HMRC, which means they cannot claim certain tax reliefs and entitlements, such as Marriage Allowance. However, they can claim bereavement benefits if they have dependent children. While common-law partners do not have automatic rights to each other's property, they can establish a cohabitation agreement to outline their rights and responsibilities during the relationship and in the event of a separation.
In terms of inheritance, common-law partners do not have the legal right to inherit their partner's estate if they die without a will. However, a surviving partner may be able to legally claim financial assistance if they were financially dependent on their deceased partner. Additionally, a common-law partner can choose who will receive their pension pot if they die before it is used, and they can also arrange a 'survivor pension' for their financially dependent, unmarried partner.
In Scotland, there are some differences in the laws regarding common-law partnerships. For example, household goods bought during the relationship are considered jointly owned, and there are protections for surviving partners regarding estates. While common-law marriage may not be legally recognised in the UK, couples can take steps to protect their rights through legal agreements such as cohabitation contracts or declarations of trust.
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Cohabitation agreements can provide some protection
Cohabitation agreements, also known as living together agreements, are a way for unmarried couples to ensure they are prepared for all eventualities in their relationship. They are a legally binding document that sets out a couple's assets and obligations within the relationship, covering them in the event of separation.
In the UK, common-law marriage does not have legal recognition, and cohabiting couples do not have the same legal rights and protections as married couples. For example, they are treated differently in areas such as property rights, pensions, and inheritance, and are considered “unconnected individuals” by HMRC, limiting their access to certain tax reliefs and entitlements. Without a legal agreement, it may be difficult to determine ownership of assets acquired during the relationship, and a surviving partner may not automatically inherit their partner's assets if they die without a will.
A cohabitation agreement can provide some protection in these areas. For instance, it can outline who will keep specific assets and what will happen to jointly purchased assets if the couple separates. It can also help to ensure that both partners have access to pensions, as unmarried partners do not automatically have the same pension rights as married couples.
To create a cohabitation agreement, each partner should have an independent legal representative to ensure the agreement is legally binding and to remove the possibility of duress. The cost of a cohabitation agreement can vary depending on the specific circumstances and requirements of the couple.
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Common-law marriage is recognised in some US states
In the UK, common-law marriage does not have legal recognition. However, common-law marriage is recognised in some US states.
Common-law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a form of irregular marriage that is currently recognised in seven US states and the District of Columbia, with an additional two states recognising it for limited purposes. These states are:
- Colorado
- Iowa
- Kansas
- Montana
- Rhode Island
- Oklahoma
- Texas
Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage. Additionally, Alabama, Florida, Georgia, Idaho, Indiana, Ohio, and Pennsylvania have abolished common-law marriage but still recognise such marriages formed before a certain date.
To be recognised as a common-law marriage, couples must meet the requirements set by their state. For example, in Texas, couples can file a legal "Declaration of Informal Marriage", which is a legally binding document that must be completed by both partners and affirmed in the presence of the County Clerk. Alternatively, couples can meet a three-pronged test, showing evidence of the following:
- An agreement to be married
- Living together in Texas as a married couple
- Holding themselves out to the public as a married couple
While common-law marriage is not recognised in the UK, cohabitation agreements can provide protections similar to marriage, such as equal shares of assets or access to pensions. Additionally, unmarried partners may have the right to continue living in the home if their partner, the sole tenant, passes away.
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Common-law marriage is not recognised in Canada
Canada does not have the institution of common-law marriage, where a couple can be legally married by living together with the intention to be married, without a formal ceremony. Instead, informal cohabitation relationships are recognised, creating legal rights and obligations. For federal tax purposes, 'living common-law' means couples have lived together for 12 continuous months or share a child by birth or adoption. This timeline also applies in the context of immigration.
The definition of common law in most other contexts varies depending on the province. For example, in Nova Scotia, a couple is considered to be in a common-law relationship if they live together in a marriage-like relationship and refer to themselves as partners or spouses. In Saskatchewan, a couple must live together continuously for at least two years. In British Columbia, a couple must live together in a marriage-like manner for at least two years or have a child together.
In Canada, a "conjugal relationship" is more than just a sexual relationship. It involves sharing a home, finances, friend groups, and an emotional connection, in addition to having a sexual relationship. While family law falls under provincial law, the distinction between married and cohabiting spouses has been called into question. The Supreme Court of Canada held that the discrepancy is not discriminatory, but it's important to understand the distinctions to protect yourself in the event of a relationship breakdown.
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Frequently asked questions
No, common-law marriage is not recognised in the UK. This means that couples who live together without a formal marriage or civil partnership do not have the same legal rights as married or civil-partnered couples.
Common-law marriage is a marriage-like relationship where a couple lives together for a certain period of time without getting married or registering their partnership formally.
Cohabiting couples have limited rights in the UK. They are not automatically entitled to inherit their partner's estate and do not have automatic rights to each other's property. However, they can take steps to protect themselves, such as creating a cohabitation agreement or a will.
A cohabitation agreement is a legal contract that outlines the rights and obligations of each partner towards each other in the event of separation. It covers finances, property, and arrangements for any children.
Cohabiting couples can also consider creating a will to ensure their assets are distributed according to their wishes in the event of their death. They can also buy property together as joint owners, giving both partners a legal stake in the property.
