Understanding the reality of ‘common law marriage’ is essential for anyone living with a partner, especially as more couples choose not to marry.
In this article, Family expert Simon Immins explains why the idea of common law marriage is a myth. What this means for cohabiting couples and how upcoming Government proposals could reshape the legal landscape.
What is common law marriage?
Common Law Marriage is a myth. It is not currently recognized in English Law.
Many couples who live together as a family and often have children together believe that if they live together for a certain period of time, say 1 or 2 years then in the eyes of English Law they are in a relationship similar to marriage and have possibly gained rights similar to married couples in England.
In fact, this is not the case. When a couple who have lived together for any amount of time they have gained no more rights than they did on day one of the relationship. Whether they have been together for 1 or 20 years they still have no rights in terms of any claims they believe they might have against their partner if the relationship breaks down.
How the assets of a separating unmarried couple are divided is by ownership alone the court cannot redistribute as it can with a Divorce. ..
There may be limited terms regarding claims for provision for children of the relationship but again those are restricted by the Child Maintenance Service (CSA in old money).
Do courts recognize common law marriage?
Common Law Marriage is a myth. It is not currently recognized in English Law.
Over 3.5 million couples currently live together in England and Wales, more than double the number from 30 years ago. However, many of these couples mistakenly believe they have legal protections under ‘common law marriage’.
What have the government proposed?
In a recent speech to the House of Lords the Government set out the plans for modernizing family law in England and Wales. This included a proposal for a consultation on how the law should treat relationship breakdown across all types of couples.
Baroness Levitt, on behalf of the current Government has confirmed that reform will not be piecemeal.
The consultation will address cohabitation reform and financial remedies on divorce simultaneously. This approach is in recognition of the fact that reforms in one area always have implications for the other.
The Government has stated it is determined to bring consistency and fairness across,
- Marriage,
- Civil partnerships and,
- Cohabitation.
Whilst ensuring that children remain at the centre of what happens when relationships break down.
What will the consultation affect?
Cohab Reform
Resolution which is an organisation of Family Lawyers and other professionals who advise parties in family disputes, has been campaigning for many years for the government to look at the inequity that is currently caused.
The consultation will explore how to provide legal protections for cohabiting couples when their relationships end, addressing the current gap in legal rights that leaves many financially vulnerable.
Financial remedies
When the courts consider division of matrimonial assets for divorcing couples, they are guided by Section 25 of the Matrimonial Causes Act 1973 (with some changes made over the years).
Over the past 50 years or so the Courts have interpreted the sections of this Act to try to reflect the societal changes that have taken place, but it is fair to say the statute struggles to be fit for purpose.
As there is a wide range of discretion given to the courts as to how they decide financial cases there is often uncertainty. This causes tensions between the parties and can mean that they are reluctant to freely negotiate given they cannot be sure on how a court would decide if no agreement can be reached.
Nuptial agreements
In 2014 The Law Commission made recommendations regarding how the law should look at Pre-Nuptial and Post-Nuptial Agreements. The law is still uncertain although the courts do give consideration to these agreements far more than they used to.
Conduct in financial proceedings
One area in particular is the question of how bad conduct should be looked at when looking at dividing matrimonial assets. Currently, it is a very high bar that usually requires the conduct to have had a marked financial effect on the assets or an ability of a party to generate income post separation.
The question of how the court should deal with domestic abuse when looking at financial proceedings will be reviewed.
Children at the heart of reform
The statement repeatedly emphasised that children will be prioritised at all points in the reform process. This principle will be central to the Government’s consideration of all aspects of family law reform, from cohabitation rights to financial settlements.
Timeline and implementation
The consultation is guaranteed to proceed and the resultant paper will be published by Spring 2026 but when any of the recommendations are put into any statutory framework is debatable.
Family Law Experts
At Frettens, we understand that everyone’s circumstances are different.
Our bright & experienced Family Team would be happy to talk to you to gain a better understanding of your situation and provide more tailored advice and support.
We offer a free chat with one of our family lawyers for all new clients. You can call us on 01202 499255 or fill out the form at the top of this page to get in touch.
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