The common law marriage myth: Stewarts warn of legal COVID-19 cohabiting dangers

COVID-19 restrictions and lockdown measures have thrown many wedding plans into disarray, causing countless couples across the country to postpone their nuptials and reschedule when they will get married.

As government guidance in England continues to state that weddings or civil partnerships should only take place in exceptional circumstances, Stewarts explain the consequences of the delay and what this means legally for couples who are already living together.

The common law marriage myth

There is no such thing as a common law marriage in England and Wales regardless of the duration of the relationship. Therefore, if a couple does separate, despite intending to get married, they will have no automatic financial claims against each other.

However, upon a marriage or civil partnership, spouses do automatically gain financial rights and responsibilities towards each other.

Rights for cohabiting couples

Cohabiting couples, with or without children, are not recognised in law in the same way as those who are married or in a civil partnership, and do not have the same rights as a married couple on separation or death.

There have been several unsuccessful attempts to reform this area of law and imminent change seems unlikely.

However, limited financial claims can be made if the cohabiting couple have children together. The couple must both be biological parents so children from previous relationships will not be considered for claims in this regard, and they may be able to claim under property law in respect of (usually) the former family home. However, such claims are very challenging especially if the home is not owned in joint names.

Matthew Humphries, Divorce and Family Partner, said: “It is always prudent, if not particularly romantic, to consider before marriage or living together, the financial consequences in the unhappy event of separation. This applies as much to those couples who plan to get married as to those who intend to live together outside of marriage or civil partnership.

“A written agreement in the form of a living together agreement or a pre-nuptial agreement, can reduce, and even extinguish, the financial uncertainties upon separation, with the advantage that the financial and emotional costs of resolving that dispute upon separation can be avoided.”

Advice for cohabiting couples

A delay in the wedding date for cohabiting couples is an opportunity to consider a living together agreement followed by a pre-nuptial agreement.

A living together agreement is a legal document for couples that are living together but not yet married which sets out the parties’ intentions towards:

• Finances
• Property
• Children

This is the legal cohabiting equivalent of a pre-nuptial agreement and its terms apply during a relationship and in the event of a separation.

It is advised that the living together arrangement should then be followed with a pre-nuptial agreement, which sets out how assets will be divided in the event of a divorce.

Couples should also review their wills. This is advised in anticipation of any marriage, but unmarried partners have far fewer rights upon the death of their partner than upon the death of a spouse.

Pre-nuptial agreements

Pre-nuptial agreements are well-suited to couples where it may not be their first marriage, if there is a wealth imbalance at the time of marriage or where one party expects to inherit significant sums in the future.

It is crucial for cohabiting partners that are continuing to live together, especially with a protracted delay to their wedding plans, to be aware of their legal rights and what protection can be put in place in the event of a separation.