The myth of common law marriage
Many people still ask: does common law marriage still exist? It is an understandable question. The phrase is often used in everyday conversation, yet it has no formal legal status in England and Wales.
When Law Society president David Greene on the Law Commission’s review of marriage, he also drew attention to the elephant in the room:
“We would… urge the Commission as part of its review to consider public legal education on the ‘common law’ marriage myth and what constitutes a legally valid union.”
Confusion about common law marriage in the UK continues to leave many unmarried couples uncertain about their legal rights, financial position, and future security. Understanding the law on common law marriage is the first step towards protecting yourself and your family.
Marriage laws in England and Wales are being updated, including the recent reform giving marrying couples more choice over where and how their wedding takes place. However, the laws that govern cohabiting couples and families have never been properly unified.
For decades, it has been a feature of our culture that couples have enjoyed enduring relationships without marrying and children frequently grow up in unmarried families, yet our laws do not reflect this reality. The absence of legislation to protect these families has led to great hardship, and some would say, injustice.
What Is the Law on Common Law Marriage?
As a family solicitor, one of the things that worries me most is the widespread acceptance of the myth of common law marriage. According to a British Attitudes Survey, some 46% of people believe that common law marriage exists in England and Wales.
As a result, many people continue to enter committed, cohabiting relationships (without marrying or registering a civil partnership) believing that they will be protected if something goes wrong. The truth is that cohabiting couples can be left legally and financially vulnerable if the relationship ends or if one partner dies.
Should Cohabiting Relationships Be Legally Recognised?
If cohabiting couples were legally recognised, each party would have more rights and responsibilities towards the other. But (and this is where things get complicated) would these rights and responsibilities be desirable when individuals have actively chosen not to enter into a legal contract with one another?
Should someone in a cohabiting relationship, with little or no financial or legal responsibilities towards their partner, be made to fulfil such responsibilities? A key element of any contract is that it has been entered into knowingly and willingly. This is seemingly at odds with the very nature of cohabiting since many couples prefer to cohabit rather than formalise their relationship via marriage or civil partnership.
What Protection Exists for Cohabiting Couples and Their Families?
In England and Wales, there are a few mechanisms in place to help unmarried couples choose how they want to deal with issues involving finances, property, and children. At LSL Family Law, we can advise and assist with cohabitation agreements, also known as living together agreements.
These formal agreements set out financial arrangements, property rights, and expectations during your time living together. It can also address contributions to a home, savings, and arrangements for children, including matters connected to parental responsibility and parental rights.
Unlike a marriage certificate or civil partnership schedule, cohabitation does not automatically create legal ties. A carefully drafted cohabitation agreement can therefore provide important legal protection and define the rights and responsibilities of each partner. Seeking early legal advice ensures that both parties understand the legal differences between cohabiting and being legally married.
The Role of Pre-Nuptial and Post-Nuptial Agreements
For couples who are marrying or who are already married, pre-nuptial and post-nuptial agreements can also offer valuable certainty. These documents help clarify financial expectations and protect assets brought into the relationship, particularly where there are children from previous relationships, business interests, or concerns about future inheritance rights.
While they cannot override the court’s discretion entirely in the event of divorce, they are increasingly influential within family law proceedings. They may also help address issues such as pension rights, the division of assets, planning for inheritance tax, or protecting property intended for children.
For many married couples, pre-nuptial and post-nuptial agreements are not about anticipating separation but about having open conversation with their spouse. A common law partner or unmarried partner cannot have a pre-nup or post-nup, these are
Note that a common law partner or unmarried partner cannot have a pre-nup or post-nup, as these agreements are specifically designed for couples who are married or planning to marry. Instead, unmarried couples can consider a cohabitation agreement as detailed above.
Finding a Way Forward
It is only when couples know that they do not have substantial legal rights and responsibilities towards one another that can they take steps to rectify the situation. As David Greene mentioned, public legal education is the key to helping people to protect themselves and their families.
Resolution (the Association of Family Lawyers of which Linda and I are both accredited members) has previously campaigned for a change in the current laws to provide greater protection for cohabiting couples and their children when they separate.
A video from a Resolution campaign, entitled Cohabitation Nation, offers an excellent summary of the situation facing cohabiting couples:
Campaign groups and legal professionals hope that the government will follow in the footsteps of other countries (including Scotland and Canada) who have already found ways to provide better understanding and clearer protections for unmarried couples. After all, cohabitees and their families in England and Wales also deserve recognition, support, and justice.
Taking Informed Steps
Whether you are cohabiting, considering a joint life together, entering a civil partnership, or thinking about marriage, understanding the current laws is essential. The reality is that there are significant legal differences between married couples and those who live together without formalising their status.
As explored above, does common law marriage still exist in England and Wales? In short, it does not. Without formal legal status, many assumptions about automatic protection can lead to unexpected financial consequences.
If you are unsure about your position, taking early, tailored legal advice can help you make informed decisions and secure appropriate legal protection for you and your family. Contact us today, and we will guide you through your options with clarity, sensitivity and practical support.
Author: Tanya Forster
Consultant Family Solicitor, LSL Family Law
Useful links
www.citizensadvice.org.uk/family/living-together-marriage-and-civil-partnership/living-together-and-marriage-legal-differences/
resolution.org.uk/looking-for-help/living-together/
www.lawsociety.org.uk/en/contact-or-visit-us/press-office/press-releases/time-to-drag-marriage-laws-into-the-21st-century
www.lslfamilylaw.co.uk/services/cohabitation/
About the Author
Tanya is a family law consultant, divorce solicitor and family mediation specialist with 20 years’ experience. She is a Resolution-accredited solicitor and accredited specialist in private children law and financial provision, known for her clear, supportive and solutions-focused approach to helping families resolve divorce and separation constructively.
