The Myth of the “Common Law Spouse” in English Law

In England and Wales, the term “common law spouse” is often used to describe unmarried couples who have lived together for extended periods, often believing that this cohabitation provides them with legal rights similar to those of married couples. However, in the eyes of English law, there is no such thing as a “common law spouse.” Cohabiting partners in England and Wales do not have the same legal status or protections as married couples or those in civil partnerships, no matter how long they live together. This can have serious consequences when cohabiting relationships end through separation or death.

Why Common Law Marriage Does Not Exist in English Law

The term “common law spouse” was once used to describe historical informal unions, but today, it has no legal meaning. Under English law, a couple must formally marry or enter a civil partnership to gain the legal rights to make claims upon separation. This absence of legal rights means that:

• Property Rights: In England and Wales, property owned by one partner remains theirs alone, regardless of how long the couple has lived together. Unless the property is jointly owned, a cohabiting partner has no automatic claim to it upon separation.
• Inheritance Rights: If one partner dies without a will, the surviving partner is not entitled to inherit under the ‘rules of intestacy.’ This contrasts with the rights of married couples, who are generally entitled to inherit a portion or all of their partner’s estate, depending on the circumstances.
• Pension Rights: Cohabiting partners do not have automatic rights to a deceased partner’s state or private pensions unless specified in a pension nomination or scheme policy.
• Tax and Benefit Entitlements: Married couples and civil partners enjoy certain tax advantages and can claim benefits as a couple. Cohabitants do not receive the same treatment.

Many people mistakenly believe that cohabitation over a long period grants legal rights similar to marriage. Unfortunately, many only discover that they were mistaken after a relationship ends or upon the death of their partner.

Calls for Reform: Proposals to Give Cohabitants More Legal Rights

The lack of protection for cohabitants has led to increasing calls for reform.

Recommendations by ‘Resolution’ (a Body of Family Law Professionals)

Please read, save, and, if needed, share this link: Securing Cohabitation Reform: Building a Movement and Why Collaboration Matters | Resolution.

Resolution’s position on cohabitation reform can be summarised as follows:

• Legal Framework: Resolution calls for a legal framework of rights and responsibilities when couples who live together (without being married or civil partnered) split up, to provide some legal protection and secure fair outcomes at the time of their separation.
• Court Powers: Once eligibility criteria are met, indicating a committed relationship, Resolution proposes that the court should be able to make similar orders as it does in cases of divorce or dissolution, but on a more limited basis unless the couple chooses to “opt out.”
• Property Rights Adjustment: The court would have the flexibility to adjust property rights, tailoring the provisions to the cohabitants’ particular circumstances.
• Childcare Costs and Maintenance: Awards might include payments for childcare costs to enable a primary carer to work. Cohabitants should be able to apply for maintenance to reflect the economic advantages or disadvantages caused by the relationship. Maintenance would be for a limited period to allow a cohabitant to adjust to the loss of financial support before becoming self-sufficient.
• Children’s Welfare: Extending the range of orders and the criteria to be considered under Schedule 1 of the Children Act 1989 could provide a better legislative safety net for children of those left most vulnerable by relationship breakdowns.
• Inheritance Rights: Upon death, a cohabiting partner should have entitlement under the intestacy rules, subject to conditions. Resolution supports the introduction of the draft Inheritance (Cohabitants) Bill, annexed to the Law Commission’s 2011 recommendations to reform intestacy and financial provision claims.
• Tax Equality: Cohabitants should be treated the same as married couples and civil partners for tax purposes upon death, enabling them to benefit from the same exemptions regarding Inheritance Tax.

Earlier recommendations for reform have even been discussed in Parliament, but so far, the law has not changed: Common Law Marriage and Cohabitation – House of Commons Library.

Limitations and Public Policy Considerations

Many of these proposed changes face both practical and ideological challenges. Some argue that introducing these rights would ‘blur the line’ between cohabitation and marriage, potentially reducing the legal incentives to marry or enter a civil partnership. Others worry about increasing the legal and administrative burden of determining who qualifies as a cohabitant under these new laws. However, others believe that the law should reflect modern social realities, where cohabitation is increasingly common, and that the courts should provide fair and adequate protections for all types of relationships.

Conclusion

The belief in a “common law spouse” remains a myth in England and Wales, but the calls for reform suggest that the law needs to evolve as society changes. Cohabiting couples should take the time to understand their current legal standing and consider legal measures—such as wills, cohabitation agreements, and clear property arrangements—to protect their interests.

For more information, please read, share, or save these links:

• Cohabitation Agreement Solicitors: Protect Unmarried Couples’ Rights
• Writing a Will: How and Why to Make Your Will

Or contact David Winnett at dwinnett@hopkins-solicitors.co.uk.