There is a common misconception in England and Wales that couples who live together for a long period acquire “common law marriage” rights.
The reality is that no matter how long a couple live together, regardless of whether they have children or share finances, they do not gain any legal status or protections as a result of the relationship.
This often comes as a surprise, especially for people who have moved from jurisdictions in which cohabiting couples do have legal rights.
It can be equally surprising for English and Welsh nationals who move abroad to discover that their cohabiting partnership gains legal status, with implications should they separate.
We have recently supported a number of people with international cohabitation disputes and the preparation of Cohabitation Agreements, which have highlighted just how significant the differences can be between England and Wales and different jurisdictions in North and South America.
How the USA treats Cohabiting Couples
Each state in the USA is subject to its own laws and many do not provide legal protections for couples who are not married or in a legal union. However, some states including Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas and the District of Columbia recognise common law marriage between cohabiting couples providing particular requirements are met.
Cohabitation Rights in Washington
Washington Courts do not recognise common law marriage in the same way, but they do apply the legal doctrine of “Committed Intimate Relationships” (CIR) allowing for the equitable division of property and debts acquired during a committed, marriage-like relationship.
Cohabitation Rights in California
The law in California does not formally recognise common law marriage nor CIR, but it is possible to bring court proceedings to enforce agreements relating to property division and financial support after a relationship ends.
This stems from a 1976 case involving the actor Lee Marvin, which remains influential today and is commonly referred to as a “Marvin Action”.
Importantly, there does not need to be a written agreement for a claim to succeed. The court can consider whether an implied agreement existed by examining the couple’s conduct during the relationship. For example, the court may look at whether one person gave up their career to support the other or took on domestic responsibilities that benefited the relationship overall.
If an implied agreement is found to exist, the court may make orders relating to the division of property, payment of damages and ongoing maintenance.
Cohabitation Rights in Canada
In Canada, a “conjugal” relationship can be recognised if the partners have lived together for at least 12 consecutive months for federal law or 2-3 years under provincial laws. The scope of rights and obligations varies and common-law partners do not have the same automatic 50/50 property rights as married couples. Interestingly, as Canada treats marriage and common-law relationships as two distinct entities, it is technically possible to be married to one person whilst in a common-law relationship with another.
Cohabitation Rights in South America
The relationships of unmarried, cohabiting couples are widely recognised by South American legal systems. Although the specific laws vary there are common criteria for the relationship to gain legal status, including not being married to anyone else, living together for a minimum period (usually 2 years) and being recognised publicly as a couple, or having a child.
For example, in Brazil couples who are considered to be in a stable union (“união estável”) have many of the same legal rights as married couples. To qualify, the relationship must be committed, continuous and public, with the intention of building a family life together. This does not necessarily mean having children, but it can include shared responsibilities and joint financial arrangements.
If the stable union comes to an end, assets acquired during the relationship are generally shared equally unless the couple has formally agreed otherwise. The financially weaker party may also be entitled to spousal support.
In Peru, de facto unions are known as “union de hecho” and are recognised for couples who have lived together for over two consecutive years, particularly covering spousal support and inheritance rights. Although the relationship must be registered to provide full legal rights.
In Argentina, cohabitation unions known as “uniones convivenciales” are recognised if couples have lived together for at least two years, offering limited legal protections regards joint property and housing, but do not automatically grant inheritance rights.
In Colombia, a “Union Marital de Hecho” (UMH) or “Union Libre” is recognised for couples who live together for two years, which grants similar rights to property, social security and inheritance.
Cohabitation Rights in England and Wales
The position in England and Wales remains far more limited. Regardless of how long a couple have lived together, if the relationship comes to an end there are no automatic financial claims that can be made against the other simply because of the relationship itself.
Relationships with Children
Where there are children, it may be possible to bring a claim under Schedule 1 of the Children Act 1989. This can include provision for a home for the child/children during their minority (usually under 18), after which the property is often sold and the proceeds returned to the person who originally provided the funds.
Claims may also be made for lump sums connected to the birth and upbringing of a child. These can include practical expenses such as a car, furniture or musical instruments.
Child maintenance (child support) is assessed by the Child Maintenance Service and it is only possible to apply to the Court for this to be topped up in limited circumstances, where the paying parent’s gross income exceeds £156,000 per annum.
Relationships without Children
Where there are no children, the main route for a financial claim following separation is generally through the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”).
TOLATA provides a framework for resolving disputes between co-owners of property. If a property is held in one person’s name, these claims usually depend on establishing that the other person acted to their detriment and made a contribution to the property in some way.
There is no automatic right to claim maintenance. If a property has always been held solely in one person’s name, and the other person has not contributed to the mortgage or carried out substantial work to the property, there may be no entitlement to any share at all.
The Financial Risks of Cohabitation in England and Wales
The contrast between England and Wales and many other jurisdictions remains significant. Unlike jurisdictions such as Brazil, where cohabitation can create rights similar to marriage, or California, where courts may enforce express or implied agreements between separating couples, English (and Welsh) law currently provides very limited protection to unmarried partners based solely on the relationship itself.
For many couples, particularly where there is a difference in income, property ownership or financial contribution, this can create considerable uncertainty and, in some situations, serious financial hardship following separation.
It is possible that after many years together having had children who have grown up and left home, the financially weaker partner may find themselves without housing, income or any meaningful financial protection. If that possibility feels unfair to you, a Cohabitation Agreement can help.
Legal Agreements that Can Help
One way to reduce uncertainty is through a Cohabitation Agreement. Provided an agreement is properly drafted with legal advice, signed as a deed and entered into freely, a Cohabitation Agreement will usually be upheld by an English Court reducing uncertainty and the likelihood of future conflict.
Unmarried couples can also consider putting in place a declaration of trust to regulate their financial arrangements while living together. This can help clarify property ownership and record the shares in which any property is held.
Our team has extensive experience advising on Cohabitation Agreements, declarations of trust and disputes involving cohabitation claims. We help people put clear arrangements in place and reduce the risk of uncertainty or future conflict.
Proposed reform in England and Wales: A fairer end to relationships
The UK government is considering changes to family law and is seeking public views through a consultation. The proposals would affect how finances are divided when relationships end, strengthen legal protections for some cohabiting couples, and improve inheritance rights for cohabitants when a partner dies without a will. The consultation is intended to help shape future reforms before any changes to the law are introduced.
The consultation opened on 5 June and will remain open for 10 weeks, ending on 14 August. The consultation can be accessed online here.
The government will review the consultation responses before deciding on the final policy. Any agreed reforms would then be introduced when parliamentary scheduling permits.
For more information on the proposed cohabitation reform, you can watch a video by James Pirrie here.
Moving Overseas with your Partner
Moving to or from England with your partner can bring exciting opportunities, but it can also result in unexpected legal challenges. It is advisable to check local relationship laws in advance to ensure that you have the legal rights and protections that you expect. If the status of your relationship will not be recognised in the way that you hope, we can support you to find a practical and constructive solution tailored to your individual circumstances.
