Don't believe that 'common law' marriage exists

 An excerpt from Lawpack's Living Together - An Essential Legal Guide.

There are many myths about the law relating to those who live together which give people a false sense of security. The most dangerous of these affects unmarried couples who live together (this is known as cohabitation). 

How many times have we all heard that an unmarried couple's relationship is protected by the law because it is considered to be a 'common law marriage'.

Think again. In truth, there are no such people as 'common law wives' and 'common law husbands', since the concept of a common law marriage was abolished way back in 1753 by the Marriage Act. Despite the fact that it is frequently referred to in the press, it plays no part in the law of England and Wales.

Until recently in Scotland, there was a form of common law marriage called 'marriage by cohabitation with habit and repute'.

The theory behind this law was that if a man and woman cohabited as husband and wife in Scotland for sufficient time and were generally held and reputed to be husband and wife and were free to marry each other, they would be presumed to have consented to marry each other and if this presumption was not overturned, they would be considered to be legally married.

This form of common law marriage has now been abolished by the Family Law (Scotland) Act 2006 which came into force on 4 May 2006.

So, to conclude, if you are an unmarried couple living together (cohabitation) or if you are homosexual and not in a civil partnership, it is extremely unclear as to whether you have any special rights against your partner if you separate, however long you have lived together and however many children you may have. This means that you may not have any special rights for financial help if things go wrong. 

But there are steps you can take to ensure that you will be financially provided for in the event of separation, illness or death.

A simple step you can take is to make a will. You can read more about how you can overcome the cohabitation risks by making a will in our article. Or you can protect yourself and write a will with Lawpack today.

Living Together - An Essential Legal Guide is a book that has been designed to talk you through this and other steps you can take to protect yourself and your partner.

And if you are one of the many people who did not take any of these steps when your relationship was going well, then don't despair. Living Together - An Essential Legal Guide will tell you how to make the most of the law and about the protection you may be able to find.

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Published on: October 5, 2009

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