The current law in England and Wales in relation to cohabitees is uncertain and the frequently quoted myth of the ‘Common Law Marriage’, namely the mistaken belief that cohabitees acquire the same rights as married couples after living together for a period of time, simply does not exist. There is no legal concept of a common law spouse in England and Wales.
There is currently before parliament a Cohabitation Rights Bill which in mid-December passed the second reading in the House of Lords and will now proceed to Committee stage. The Bill, if passed, would give cohabiting couples similar rights to married ones although not the same or as extensive.
The legal rights differ massively upon relationship breakdown for a spouse and a cohabitant:
A spouse would be entitled to bring claims pursuant to matrimonial legislation for capital lump sums, transfer of property, income and interim maintenance, child maintenance where there is a child and for an interest in the other spouse’s pension. There is by virtue of being married an automatic right to claim for such things. It will depend on the circumstances of each couple as to whether or not these claims will be successful, but the right to claim is there.
A cohabitant’s claims are limited to a potential interest in a property, if indeed the couple, or at least one of them, owned a property and an interest in that property can be proved and; if there is a child in the family, the financial rights under the children legislation, namely Schedule 1 of the Children Act 1989 and separately child maintenance.
Despite the fact that the cohabiting relationship may have lasted much longer than a marriage and the parties may have been more financially entwined, cohabitants do often come out of longstanding relationships far worse than spouses. To prevent this cohabiting couples at any time during their relationship can formalise aspects of their status and what the arrangements will be on the breakdown of the relationship with their partner by drawing up a legal agreement called a cohabitation Agreement or living together agreement.