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Cohabiting: Expelling the ‘common law marriage’ myth

It’s so romantic! You fall in love and decide to move in with each other. But where to live? One of you is renting, while the other owns their own home so it makes financial sense for the one who’s renting to hand in their notice to their letting agent in east London (or wherever it is they live) and move in with the one who owns their own property. 

No more rent to pay and you get to share not only the duvet but also the cost of the bills. It’s a win-win situation for both of you and you can spend the money you’re now saving on takeaway pizza/holidays in the sun/a deposit for a home to buy together [delete as appropriate]. 

Because living together is no longer frowned upon, this is a situation that happens all over the world when millions of couples choose to live together instead of, or before, getting married. 

But it’s a common misconception that, after a while, ‘common law marriage’ comes into play and affords couples who are living together the same rights as married couples or those in a civil partnership. 

In fact, there is currently no legal definition of ‘common law marriage’ and it hasn’t existed in England and Wales since 1753. What this means is that, when it comes to your rights when you live with your partner, unfortunately, you haven’t got many, especially when compared to married couples or those in a civil partnership. 

Your rights if the relationship ends and you separate

If the relationship ends for whatever reason and you agree to separate, unless your home (whether rented or owned) is in both your names, you have absolutely no legal entitlement over it. 

To put it simply; if your partner owns the house and it’s in their name only, or if the tenancy agreement is only in their name, then you have no automatic right to stay in the property if your partner asks you to leave. 

Your rights if one of you dies

Unless you have a joint bank account, if your partner dies, you won’t automatically inherit their money. The same goes for any property owned. If your home is in your partner’s name, you won’t automatically inherit it. 

Even if your partner has made a will and you do inherit property and money, unlike married couples, you’ll have to pay inheritance tax on it if you inherit more than £325,000 (figure correct as at time of writing in July 2021).

What you can do to protect yourself

We know this may be disappointing news. After all, you invest a lot in a relationship and we’re not only talking about money. You may spend many years with someone and to find yourself homeless and penniless at the end of the relationship can seem enormously unfair. 

So, to give you some protection and security in the event of death or separation, you can make a formal agreement, known as either a cohabitation contract or living together agreement. To do this, you’ll need to consult a lawyer who specialises in family law. 

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