The Thompson Smith and Puxon (TSP) Family and Divorce team, discuss the widely held misconception that is common law marriage.

Despite the fact that the proportion of cohabiting couple families has risen starkly in the last decade and, by comparison, marriage rates are on the decline, there remains a myth that common law marriage exists and that cohabitants automatically have legal rights.

There is a widely held misconception that unmarried couples living together share the same legal rights as their married counterparts, but this is simply not the case. Married couples and those in registered civil partnerships have automatic legal claims for financial support and a share of capital assets such as the family home, bank accounts, investments and pensions. However, no such claims automatically exist for cohabiting couples, despite the fact that they may have lived together for many years or even have children or own property together.

Many people live together without realising the legal implications. Many go on to purchase property without considering how to protect their contributions to ensure they have a financial interest should the relationship break down.

The law as it stands in relation to unmarried couples is very complex and out of step with the reality of how people are choosing to live their lives. Disputes over whether a cohabitant has an interest in a property can be costly and lengthy. It is very difficult for a cohabitant to successfully argue they have an interest in property owned in the other’s sole name unless they produce evidence of a direct financial contribution to the value of the property. For this reason, cohabiting couples should ensure that both names are on the title deeds for any property and that all contributions are well documented.

Any couple wishing to own property in unequal shares should raise this with their solicitor and enter into a legal document known as a Declaration of Trust. In addition, they should consider preparing a Living Together/Cohabitation Agreement. This can, amongst other things, set out how the mortgage repayments and utility bills will be paid, how any joint bank account will run, responsibility for structural repairs and renovations, and what will happen to the property should the relationship break down.