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Family Law Myth 3: The Common Law Spouse

MYTH: The Common Law Spouse

REALITY: Cohabiting couples do not transform into “common law” husbands and wives after a period of time and they do not have the same legal rights as married couples. Put quite simply, common law marriage does not exist. There are two main circumstances when the legal differences come to light: on death and on separation. When separating, regardless of the length of the cohabitation or whether you have children, you do not have any legal status and therefore you do not have the same rights to share in your partner’s assets as married couples who get divorced. On death, the surviving partner will not have an automatic right to their partner’s estate or pension, and will not be eligible for the spousal inheritance tax exemption.

There are some steps you can take to protect your position, if you do not wish to get married: 

  1. Make a Cohabitation Agreement, which sets out what will happen to your assets should your relationship break down in the future.
  2. Make a Will, or your partner will not inherit anything under the Rules of Intestacy.
  3. Specify who should receive your pension, life insurance policy pay-out, and death in service benefits.
  4. Write a declaration of trust if you purchase property together to confirm what will happen to the property on separation.
  5. In due course a Civil Partnership will be available.


For more information or advice, please get in touch with the Family team.


These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.



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