BRIEFING PAPER

Number 03372, 9 February 2016

"Common law marriage"

and cohabitation

By Catherine Fairbairn

Inside:
1. What is common law
marriage?
2. Number of cohabiting couples
3. The current law relating to
cohabitation
4. Cohabitation agreements
5. Law Commission report
6. Scotland
7. Northern Ireland

www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | [email protected] | @commonslibrary

Number 03372, 9 February 2016

Contents
Summary

1.

What is common law marriage?

2.
2.1
2.2

Number of cohabiting couples

Opposite sex cohabiting couples
Same sex cohabiting couples

5
5
6

3.
3.1
3.2
3.3
3.4

The current law relating to cohabitation

Property rights
Housing
Domestic violence
Inheritance
Surviving cohabitant has no automatic right to inherit partners estate
Law Commission proposal to extend inheritance rights for some cohabitants
3.5 Social Security
3.6 Pensions
3.7 Taxation
3.8 Immigration
3.9 Birth registration
3.10 Parental responsibility

8
8
9
9
10
10
10
11
12
13
13
13
14

4.

Cohabitation agreements

15

5.
5.1
5.2

Law Commission report

New statutory scheme recommended
Government response

16
16
17

6.

Scotland

19

7.

Northern Ireland

20

Contributing
Authors:

Catherine Fairbairn, Cohabitation; property rights;

inheritance; birth registration; cohabitation agreements;
sections 1, 3.1, 3.4, 3.9, and 4 to 7;
Oliver Hawkins, Statistics, section 2;
Wendy Wilson, Housing, section 3.2;
John Woodhouse, Domestic violence, section 3.3;
Steven Kennedy, Social Security, section 3.5;
Djuna Thurley, Pensions, section 3.6;
Antony Seely. Taxation, section 3.7;
Melanie Gower, Immigration, section 3.8;
Tim Jarrett, Parental responsibility, section 3.10

Cover page image copyright: Holding hands no copyright required / image cropped

"Common law marriage" and cohabitation

Summary
This briefing paper provides general information about the number of cohabiting couples,
how the law applies to cohabitants, and about the Law Commissions proposals for
reform.
Unless specified otherwise, this paper deals generally with the law in England and Wales.
There is also a short summary of the position in Scotland and Northern Ireland.
Although cohabitants do have some legal protection in several areas, cohabitation gives
no general legal status to a couple, unlike marriage and civil partnership from which many
legal rights and responsibilities flow. Many people are unaware that there is no specific
legal status for what is often referred to as a common law marriage. This is the case no
matter how long the couple lived together and even if they had children together.
This paper sets out information about how the current law affects cohabiting couples in
these areas: property rights; housing; domestic violence; inheritance; social security;
pensions; taxation; immigration; birth registration; and parental responsibility.
The Office for National Statistics has published annual data on the composition of families
and households living in the UK since 1996. During this period, the number of opposite
sex and same sex cohabiting couple families has increased, but trends differ between
opposite sex and same sex couple families.
Some cohabitants enter into a cohabitation agreement which can act as encouragement
to consider what they would want to happen if the relationship ends.
In July 2007, following consultation, the Law Commission published a report,
Cohabitation: the financial consequences of relationship breakdown, which considered
the financial consequences of the ending of cohabiting relationships. The
Law Commission recommended the introduction of a new statutory scheme of financial
relief on separation, based on the contributions made to the relationship by the parties.
The scheme would be available to eligible cohabiting couples. Couples who have had a
child together or who have lived together for a minimum period would be eligible.
Couples would be able to opt out of the scheme by a written agreement to that effect.
In March 2008, the Labour Government announced that it would be taking no action to
implement the Law Commissions recommendations until research on the cost and
effectiveness of a similar scheme recently implemented in Scotland could be studied. On
6 September 2011, Jonathan Djanogly, then a junior Justice Minister, announced that,
having carefully considered the Law Commissions recommendations, together with the
outcomes of research on the Family Law (Scotland) Act 2006, the then Government did
not intend to reform the law relating to cohabitation in that Parliamentary term.
In a separate report, published in 2011, the Law Commission recommended that some
unmarried partners should have the right to inherit on each others death under the
intestacy rules, without having to go to court. The Coalition Government did not
implement this recommendation.
In Scotland, cohabitants may make limited claims against each other either when their
relationship breaks down or when a partner dies.
In Northern Ireland, cohabitants now have legal protection in several areas. However,
they have fewer rights and responsibilities than couples who have married or formed a
civil partnership.

Number 03372, 9 February 2016

1. What is common law

marriage?
A man and woman living together in a stable sexual relationship are
often referred to as common law spouses, but this is incorrect in law
in England and Wales. Although cohabitants do have some legal
protection in several areas, cohabitation gives no general legal status to
a couple, unlike marriage and civil partnership from which many legal
rights and responsibilities flow. Many people are unaware of this fact. 1
The charity One Plus One states that the myth of common-law
marriage (that couples who live together have the same legal rights as
married couples) springs from a time when there was uncertainty about
what constituted a marriage. 2
The then Department for Constitutional Affairs 3 funded two voluntary
sector partners, Advice Services Alliance and One Plus One, to manage
the LivingTogether campaign. 4 The purpose of the campaign was to
make cohabitants more aware of their legal status and provide them
with practical advice on how they could protect themselves and their
families, should they wish to do so. The campaign was launched on
15th July 2004 and a range of general information is available on the
Advicenow website 5 and the One Plus One website. 6
Citizens Advice also provides general information:

3
4

5
6
7

Living together and marriage: legal differences;

Living together and civil partnership - legal differences. 7

See, for example, One Plus One, Your rights and responsibilities vary depending on
the type of relationship you are in [accessed 8 February 2016]]
For further information see One Plus One, The myth of common law marriage
[accessed 8 February 2016]
Now the Ministry of Justice
Department for Constitutional Affairs, Living together but not married? Do you
know the legal implications of cohabitation?, July 2004 (ARCHIVED) [accessed
8 February 2016]
Advicenow, Living together [accessed 8 February 2016]
One Plus One, Married or not? [accessed 8 February 2016]
Accessed 9 February 2016

"Common law marriage" and cohabitation

2. Number of cohabiting couples

The Office for National Statistics has published annual data on the
composition of families and households living in the UK since 1996. 8
During this period, the number of opposite sex and same sex cohabiting
couple families has increased, but trends differ between opposite sex
and same sex couple families.

2.1 Opposite sex cohabiting couples

Between 1996 and 2015 the number of opposite sex cohabiting couple
families has doubled, from around 1.5 million in 1996 to around 3.1
million in 2015. In 1996, around 10% of all opposite sex couple families
were cohabiting (rather than married) compared with 20% in 2015.
Chart 1 below shows ONS estimates of the number of opposite sex
cohabiting couple families and opposite sex married couple families
living in the UK in each year since 1996. This chart includes all opposite
sex couples living together as a family, whether or not they have
children. 9
As the chart shows, while the number of opposite sex cohabiting couple
families has grown, the number of opposite sex married couple families
has remained broadly the same, at around 12.5 million. Between 1996
and 2004 the number of opposite sex married couple families fell, from
around 12.6 million in 1996 to around 12.2 million. The number
remained at roughly this level until 2011 but has increased since then,
reaching 12.5 million in 2015.
Since 1996, the number of dependent children living in opposite sex
cohabiting couple families has more than doubled, from around 0.9
million in 1996 to around 2.1 million in 2015. 10 The number of
dependent children in married couple families has fallen from around
9.7 million in 1996 to around 8.6 million in 2015. 11

8
9

10

11

ONS, Families and Households 2015

The ONS defines a family as a married, civil partnered or cohabiting couple with or
without children, or a lone parent with at least one child. Children may be
dependent or non-dependent.
Dependent children are those living with their parent(s) and either aged under 16, or
aged 16 to 18 in full-time education (excluding those aged 16 to 18 who have a
spouse, partner or child living in the household).
This figure includes a small number of children living in same sex married couple
families in 2015.

Number 03372, 9 February 2016

Chart 1: Married couple and opposite sex cohabiting couple

families, UK, 1996-2015
thousands

14,000
12,000
10,000
8,000
6,000
4,000
2,000

Married couple families

2015

2014

2013

2012

2011

2010

2009

2008

2007

2006

2005

2004

2003

2002

2001

2000

1999

1998

1997

1996

Opposite sex cohabiting couple families

Source: ONS, Families and Households 2015, Table 1

2.2 Same sex cohabiting couples

Between 1996 and 2015 the number of same sex cohabiting couples
increased from around 16,000 to 90,000, which is an increase of
around 460%. However, this figure understates the true extent of
growth in same sex couple families, because the introduction of civil
partnerships in December 2005 and of same sex marriage in
March 2014 means some same sex couple families are no longer
recorded as cohabiting.
Chart 2 shows ONS estimates of the number of same sex cohabiting
couple families, civil partnership families, and same sex married couple
families from 1996 to 2015. Estimates of the number of civil partnership
couples are available from 2006 and of same sex married couple
families from 2015. In this chart, the three different types of same sex
couple family are stacked in order to illustrate the trend in the total
number same sex couple families.
Because ONS estimates of the number of families are based on survey
data, estimates of these smaller populations are more uncertain.
Nevertheless, despite this uncertainty there is a clear trend in the total
number of same sex couple families, whether in a marriage, civil
partnership, or cohabiting relationship.
The number of children living in same sex couple families is difficult to
measure because the number is too small to estimate accurately from
the available survey data. However, the best available estimates suggest
that in recent years there have been somewhere around 20,000
dependent children living in same sex couple families of all types.

"Common law marriage" and cohabitation

Chart 2: Civil partnership and same sex cohabiting couple

families, UK, 1996-2015
thousands

180
160
140
120
100
80
60
40
20

Married couple families

Civil partnership families

Source: ONS, Families and Households 2015, Table 1

Same sex cohabiting families

2015

2014

2013

2012

2011

2010

2009

2008

2007

2006

2005

2004

2003

2002

2001

2000

1999

1998

1997

1996

Number 03372, 9 February 2016

3. The current law relating to

cohabitation
3.1 Property rights
Unmarried couples have no guaranteed rights to ownership of each
other's property on relationship breakdown. If a cohabiting couple
separate, the courts have no power to override the strict legal
ownership of property and divide it as they may do on divorce or
dissolution of a civil partnership. The courts may only make orders
based on a determination of shares which have been acquired in the
property in circumstances where the legal rules of trusts or proprietary
estoppel apply. These rules are technical but, essentially, one party may
be found to have a beneficial (or equitable) interest in the property even
where the property is in the sole name of the other party; or to have a
greater share than the other party where the property is held in joint
names. The apparent intentions of the parties may be relevant in
deciding the proportion of the property owned by each party. The
length of time the partners have cohabited is not necessarily relevant.
Each case is decided on its own facts.
The law relating to cohabitants and property rights is widely seen to be
uncertain. In its 2002 discussion paper, Sharing Homes, the Law
Commission concluded that It is quite simply not possible to devise a
statutory scheme for the ascertainment and quantification of beneficial
interests in the shared home which can operate fairly and evenly across
the diversity of domestic circumstances which are now to be
encountered. 12
A number of court cases have considered the property rights of
cohabitants. 13 In a 2007 case, Lord Walker of Gestingthorpe said that
there was a good deal of uncertainty and the possibility of high
litigation costs. In the same case, Baroness Hale of Richmond also
cautioned about the costs of pursuing legal action:
In family disputes, strong feelings are aroused when couples split
up. These often lead the parties, honestly but mistakenly, to
reinterpret the past in self-exculpatory or vengeful terms. They
also lead people to spend far more on the legal battle than is
warranted by the sums actually at stake. A full examination of the
facts is likely to involve disproportionate costs. In joint names
cases it is also unlikely to lead to a different result unless the facts
are very unusual. 14

In 2011, in another case, Lord Walker and Baroness Hale summarised

the principles which apply where a family home is bought in the joint
names of a cohabiting couple who are both responsible for any
mortgage, but without any express declaration of their beneficial
interests. They confirmed that each case would turn on its own facts:
12
13

14

Law Com No 278, Sharing Homes A Discussion Paper, November 2002, p7

For example, Oxley v Hiscock [2004] EWCA Civ 546, Stack v Dowden
[2007] UKHL 17, Jones v Kernott [2011] UKSC 53
Stack v Dowden [2007] UKHL 17, paragraph 68

"Common law marriage" and cohabitation

financial contributions are relevant but there are many other factors
which may enable the court to decide what shares were either
intended... or fair.... 15 They also said that there was a different
starting point where the family home is put into the name of one party
only:
52. This case is not concerned with a family home which is put
into the name of one party only. The starting point is different.
The first issue is whether it was intended that the other party have
any beneficial interest in the property at all. If he does, the second
issue is what that interest is. There is no presumption of joint
beneficial ownership. But their common intention has once again
to be deduced objectively from their conduct. If the evidence
shows a common intention to share beneficial ownership but
does not show what shares were intended, the court will have to
proceed as ...above. 16

It is open to cohabiting couples to enter into a contract regulating their

relationship and in particular their property rights. In addition, if a
house or other property is bought jointly, it is possible to make clear the
basis of the joint ownership, and whether the property is owned equally
or in unequal shares.
Further information about property rights for cohabitants is available
online including:

One Plus One: Property; 17

Shelter, Buying a home with friends or a partner. 18

3.2 Housing
The succession rights of cohabitants in relation to privately rented and
social housing are explained in two Library briefing papers entitled
Succession rights and privately rented housing 19 and Succession rights

and social housing. 20

3.3 Domestic violence

Cohabitants do benefit, in a broadly similar way to married couples,
from the protection available under Part IV of the Family Law Act 1996,
which is designed to deal with domestic violence. The Act allows
home-sharers and former home-sharers (including same sex partners) to
apply for non-molestation orders and/or court orders regulating the
occupation of the family home. The Domestic Violence Crime and
Victims Act 2004 extended these provisions to allow couples who have
never cohabited to apply for non-molestation orders, and to strengthen
the position of same sex partners, particularly with regard to occupation
orders.

15
16
17
18
19
20

Jones v Kernott [2011] UKSC 53, paragraph 51

Ibid paragraph 52

Accessed 8 February 2016

Accessed 8 February 2016
SN/SP/2004, 6 March 2009
SN/SP/1998, 30 June 2014

Number 03372, 9 February 2016 10

3.4 Inheritance
Surviving cohabitant has no automatic right to
inherit partners estate
Where a couple live together without getting married or forming a civil
partnership and one of them dies, the survivor has no automatic right
under the intestacy rules to inherit any part of his or her partners
estate. 21 This is the case no matter how long they lived together and
even if they had children together. 22 It is sometimes possible for a
surviving cohabitant to make a claim at court, under family provision
legislation, against the estate of their partner, if no provision (or
inadequate provision) has been made for them either by will or by
operation of the intestacy rules. However, a cohabitant is not treated in
exactly the same way as a spouse.

Law Commission proposal to extend inheritance

rights for some cohabitants
On 29 October 2009, the Law Commission published a consultation
paper, Intestacy and Family Provision Claims on Death. 23 This covered a
range of issues. One of the areas highlighted for potential reform was
whether certain cohabitants should have a place in the intestacy rules,
the conditions which would have to be met, and how much of the
estate they should receive.
The consultation period ended on 28 February 2010 and the Law
Commission published its final report, Intestacy and Family Provision
Claims on Death on 14 December 2011. 24 This included two draft bills,
one of which, the draft Inheritance (Cohabitants) Bill contained
provisions intended to give some unmarried partners, who had lived
together for five years, the right to inherit on each others death under
the intestacy rules, without having to go to court. Where the couple
had a child together, this entitlement would accrue after two years
cohabitation, provided the child was living with the couple when the
deceased died.
The Law Commission acknowledged that views differed on how far the
law should provide for cohabitants. However, it considered that the
question of whether a cohabitant should inherit on his or her partners
death was very different from the treatment of cohabitants on
separation. It proposed reform only where the deceased was not
married or in a civil partnership. 25
The Law Commission said that its recommendations reflect the
growing prevalence and public acceptance of cohabitation and that
21

22

23

24

25

The intestacy rules specify who should inherit the property of a deceased person
who did not leave a valid will
Law Commission, Intestacy and Family Provision Claims on Death Executive
Summary, Consultation Paper No 191 (Summary), 29 October 2009, paragraph 15
Law Commission Consultation Paper No 191, Intestacy and Family Provision Claims
on Death, October 2009
Law Commission Report No 331, Intestacy and Family Provision Claims on Death,
December 2011
Law Commission, Intestacy and Family Provision Claims on Death Executive
Summary, Law Com Report 331 (Summary), 14 December 2011, p5

11 "Common law marriage" and cohabitation

they would also bring English law into line with the law in other
Commonwealth jurisdictions. Cohabitants would still be able to make a
will naming other beneficiaries (subject to making reasonable provision
for those family members and dependants protected by existing family
provision legislation). 26
In March 2013, the previous Government announced that it had
decided that the Law Commission's recommendations regarding rights
for cohabitants upon intestacy would not be implemented during that
Parliament. 27

3.5 Social Security

For means-tested benefits and tax credits and for Universal Credit
which is to replace them the unit of claim is the family. In general
this includes the claimant and their husband, wife or civil partner, or
someone they live with as husband, wife or civil partner. 28 If two
people are treated as a couple, the resources of both partners are added
together and taken into account when a claim is made.
The rules governing Income Support and income-based Jobseekers
Allowance also recognise that married couples, and civil partners, have a
duty to maintain each other. The Department for Work and Pensions
may, for example, seek to recover money from a separated spouse or
civil partner if their partner claims benefit. These powers are rarely
exercised, however. There are no corresponding provisions for couples
who are not married or in a civil partnership.
Contributory benefits ie those which are dependent on a sufficient
National Insurance contribution record do not recognise couples who
are not married or in a civil partnership. So, for example, partners who
are not married or in a civil partnership would not be entitled to
bereavement benefits. 29 Someone in receipt of bereavement benefits
can however lose their entitlement if they start living together as if they
were husband and wife, even if they do not remarry; or start living
together with someone as though civil partners, even if they do not
register their partnership.

26
27
28

29

Ibid paragraph 33
HC Deb 21 March 2013 cc59-60WS
For further details of the living together as husband and wife or civil partners test,
see Department for Work and Pensions Technical Guide IS20, A guide to Income
Support, April 2014
There is however an exception in Scotland. In Scotland a person may be able to
claim bereavement benefits if they were married 'by cohabitation with habit and
repute' even if they did not go through a formal wedding ceremony [R(G) 1/71]. This
is more than simply living together, as there must have been something about the
relationship which meant that it could be inferred that the person and their partner
consented to marriage and nothing existed which would have prevented a valid
marriage taking place (e.g. either party already being married to someone else) [R(G)
5/83]. In addition, their relationship must have been such that other people generally
believed that they married [CSG/7/1995]. However, the rule by which marriage
could be constituted by cohabitation with habit and repute ceased to have effect
from 4 May 2006 (as a result section 3 of The Family Law (Scotland) Act 2006). For
people to continue to benefit from the rule, their marriage by cohabitation with
habit and repute must have started before this date.

Number 03372, 9 February 2016 12

Successive governments have resisted calls to extend bereavement

benefits to unmarried partners on the grounds that a founding principle
of the social insurance system is that all rights to benefit derived from
another person's contributions are based on the concept of legal
marriage (extended to include civil partnerships). However, practical
considerations have also been cited, such as the difficulty of ascertaining
the nature and depth of the relationship, and the possibility of
conflicting claims (eg where the spouse was separated when they died,
leaving both a surviving unmarried partner and a legal spouse). 30
Part 5 of the Pensions Act 2014 provides the legislative framework for a
new benefit Bereavement Support Payment to replace the existing
system of bereavement benefits for new claims starting from 2016-17.
It follows a public consultation on proposals to reform bereavement
benefits launched in December 2011. From the outset the Government
made it clear that it had no plans to extend the new benefit to
unmarried partners. Remarriage or repartnering will not however
disqualify the bereaved individual from receiving Bereavement Support
Payment, as it is intended as help with the additional costs of
bereavement, rather than serving as replacement for the deceased
spouse or civil partners earnings. For practical purposes though, this
change may have limited impact since, under current proposals,
Bereavement Support Payment would only be payable for one year.
Further information can be found in section 6 of Library Briefing Paper
13/37, and in Library briefing SN00431, Bereavement benefits.

3.6 Pensions
A cohabitant cannot rely upon their former partner's contributions for
the purposes of State Pensions. Under current rules, a person who is or
has been married, or in a civil partnership, may be able to claim a basic
State Pension (BSP) on the basis of their (former) spouse or civil partners
contributions. 31 These rules are to be removed (with some transitional
protection) for people reaching State Pension age from 6 April 2016,
when the new State Pension is introduced. 32 The rationale is that the
new State Pension has been designed for people to qualify on the basis
of their own NI record. 33 For more detail, see Library briefing paper,
SN 6525 Single-tier State Pension (December 2015) (section 6.4).
For means-tested benefits, such as Pension Credit, if two people are
treated as a couple, the resources of both are added together and may
be taken into account in assessing entitlement. Two cohabitants are
treated as a couple if they are considered to live together and share
their lives in the same way as if they were married or civil partners. 34
They are still treated as a couple during periods temporarily living apart.
30
31

32
33
34

See section 3.7 of Library briefing SN00431, Bereavement benefits, 30 August 2013
DWP, State Pension entitlements derived from a current or former spouses or civil
partners national insurance contributions (March 2013) - Annex A.; Pension Service,
a detailed guide to State Pensions for advisers and others , NP46, August 2009, p4454
Pensions Act 2014, s1(2), 11 and 12
Pensions Act 2014, s1(2), 11 and 12
Pension Service, a detailed guide to Pension Credit for advisers and others, PC10S,
September 2011, People living as husband and wife or as civil partners

13 "Common law marriage" and cohabitation

If a temporary separation becomes permanent, they can apply for

Pension Credit separately. 35
For occupational and personal pensions, a cohabitant whose partner has
died may be entitled to benefits from their pension scheme. This will
depend on the circumstances at the time of death (including their
partners age), the type of pension arrangement and the rules of the
scheme. 36 For more detail, see Library Note SN 6348 Occupational
pensions: survivors benefits for cohabitants (June 2012).

3.7 Taxation
Cohabiting couples are treated as unconnected individuals for taxation
purposes and as such cannot, for example, benefit from various reliefs
and exemptions in the taxation system available for spouses and civil
partners.

3.8 Immigration
The legal position of non-EEA national unmarried cohabitants seeking to
enter or remain in the UK with their British/settled partner largely
mirrors that for married couples, as set out on the Family visas section
of the GOV.UK website. In order to be eligible for permission to remain
in the UK as an unmarried partner of a British/settled person, the couple
must have been living togetherin a relationship akin to a marriage or
civil partnership for at least two years prior to the date of application. 37

3.9 Birth registration

If the parents were married to each other at the time of the birth or
conception, either the mother or father can register the birth on their
own and details of both parents will be recorded. The law assumes that
the mothers husband is her childs father.
If the parents are not married to one another, generally the fathers
details may be recorded only if both parents (or the court) acknowledge
the fathers paternity. The father's particulars may be entered in the
register in the following circumstances:

the mother and father sign the birth register together, or

one parent completes a statutory declaration of parentage form
and the other takes the signed form to register the birth,
one parent goes to register the birth with a document from the
court (for example, a court order) giving the father parental
responsibility. 38

If the father's details are not included in the birth register, it may be
possible to re-register at a later date.

35
36

37
38

Ibid, People living apart from their partner

See, for example, Pensions Advisory Service website, Workplace pension schemes
final salary scheme - death benefits and Personal and stakeholder pensions - death
benefits. HMRCs Registered Pension Scheme Manual - Members Pages - Death
benefits
Immigration Rules (HC 395 of 1993-4 as amended), Appendix FM para GEN.1.2
Gov.UK, Register a birth, updated 30 December 2015 [accessed 8 February 2016]

Number 03372, 9 February 2016 14

Information about registering a birth is included on the Gov.UK website.

This includes information about how same sex couples may register a
birth and about who else may be able to register a birth.
Section 56 and Schedule 6 of the Welfare Reform Act 2009 were
intended to make provision for the joint registration of births, wherever
possible, where the parents of a child are not married to each other nor
are civil partners of each other. However, these provisions have not
been brought into force. 39

3.10 Parental responsibility

The legal position relating to parental responsibility for unmarried
fathers is set out in a Library briefing paper, Parental responsibility for
unmarried fathers and step-parents. 40

39

40

Department for Education, The Registration of Births (Parents Not Married And Not
Acting Together) Regulations 2010 - Consultation Results [accessed
8 February 2016]
SN/SP/2827, 8 September 2014

15 "Common law marriage" and cohabitation

4. Cohabitation agreements
Cohabitants may wish to enter into a cohabitation agreement and this
can act as encouragement for them to consider what they would want
to happen if the relationship ends. Both parties should take legal advice
on the effect of any proposed agreement. One Plus One comments
that although courts are showing more willingness to take account of
such agreements there is still no certainty that they would enforce one,
but considers that an agreement provides a good starting point. 41
Advicenow has published, How to make a living together agreement,
which includes a template of an agreement. 42

41
42

One Plus One, Contracts, [accessed 8 February 2016]

March 2015 [accessed 8 February 2016]

Number 03372, 9 February 2016 16

5. Law Commission report

5.1 New statutory scheme recommended
On 31 July 2007, following consultation, the Law Commission published
a report, Cohabitation: the financial consequences of relationship
breakdown. 43 The Report recommended the introduction of a new
scheme of financial remedies for cohabitants on separation. The
Law Commission did not consider that cohabitants should be given the
same rights as married couples and civil partners in the event of their
separation.
The Law Commission proposed the introduction of a scheme of
financial relief on separation based on the contributions made to the
relationship by the parties (rather than on the respective financial needs
of the parties as in divorce). First consideration would be given to any
dependent children of the couple. Unlike in cases of divorce,
cohabitants would not be expected to meet each others future needs
by means of maintenance payments, and there would be no principle
that the parties should share their assets equally. 44
Moving in with someone, by itself, would not automatically give rise to
any entitlement to a remedy. The scheme would be available to eligible
cohabiting couples. Couples who have had a child together or who
have lived together for a minimum period would be eligible. The
Law Commission recommended that the minimum period for couples
without children should be set within a range of two to five years. 45
Couples would be able to opt out of the scheme by a written
agreement to that effect.
The key features of the scheme were summarised in the Executive
Summary. This includes an explanation of the basis for remedies based
on qualifying contributions to the relationship:
1.17 It would not be sufficient for applicants simply to
demonstrate that they were eligible for financial relief and that
the couple had not made a valid opt-out agreement disapplying
the scheme. In order to obtain a remedy, applicants would have
to prove that they had made qualifying contributions to the
parties relationship which had given rise to certain enduring
consequences at the point of separation.
1.18 The scheme would therefore be very different from that
which applies between spouses on divorce. Simply cohabiting, for
however long, would not give rise to any presumed entitlement to
share in any pool of property. Nor would the scheme grant
remedies simply on the basis of a partys needs following
separation, whether by making orders for maintenance or
otherwise.
1.19 In broad terms, the scheme would seek to ensure that the
pluses and minuses of the relationship were fairly shared between
43
44

45

Cm 7182, LAW COM No 307

Law Commission press release, New remedies for cohabitants different from
divorce, 31 July 2007

Ibid

17 "Common law marriage" and cohabitation

the couple. The applicant would have to show that the

respondent retained a benefit, or that the applicant had a
continuing economic disadvantage, as a result of contributions
made to the relationship. The value of any award would depend
on the extent of the retained benefit or continuing economic
disadvantage. The court would have discretion to grant such
financial relief as might be appropriate to deal with these matters,
and in doing so would be required to give first consideration to
the welfare of any dependent children.
1.20 We consider that a scheme based on these principles would
provide a sound basis on which to address the hardship and other
economic unfairness that can arise when a cohabiting relationship
ends. It would respond, more comprehensively than the current
law can, to the economic impact of the contributions made by
parties to their relationship, and so to needs which arise in
consequence. Where there are dependent children, the scheme
would enable a remedy to be provided for the benefit of the
primary carer, and so better protect those children who share
their primary carers standard of living. By making adequate
provision for the adult parties, the scheme would give more
leeway to the court than it currently has to apply Schedule 1 to
the Children Act 1989 for the benefit of the parties children. 46

Stuart Bridge, the Commissioner leading the project, said that the
scheme would be distinct from divorce provisions and would not
undermine marriage:
The scheme we are recommending, in the light of consultation, is
distinct from that which applies between spouses on divorce. It
would not apply to all cohabitants and where it did apply would
only give rise to remedies relating to contributions made to the
relationship. We do not accept the argument that such reform
would undermine marriage. We consider that our scheme strikes
the right balance between the need to alleviate hardship and the
need to protect couples freedom of choice. 47

5.2 Government response

Labour Government: study research on Scottish
scheme before decision
On 6 March 2008, Bridget Prentice, who was then a junior Justice
Minister, announced that no action would be taken to implement the
Law Commissions recommendations until research on the cost and
effectiveness of the scheme recently implemented in Scotland could be
studied. 48

Coalition Government: no implementation at that

time
On 6 September 2011, Jonathan Djanogly, then a junior Justice
Minister, announced that, having carefully considered the
Law Commissions recommendations, together with the outcomes of
46

47

48

Law Commission, Cohabitation: The Financial Consequences of Relationship

Breakdown Executive Summary, Law Com No 307 (Summary), 31 July 2007
Law Commission press release, New remedies for cohabitants different from
divorce, 31 July 2007
HC Deb 6 March 2008 c122WS

Number 03372, 9 February 2016 18

research on the Family Law (Scotland) Act 2006, the then Government
did not intend to reform the law relating to cohabitation in that
Parliamentary term:
The findings of the research into the Scottish legislation do not
provide us with a sufficient basis for a change in the law.
Furthermore, the family justice system is in a transitional period,
with major reforms already on the horizon. We do not therefore
intend to take forward the Law Commissions recommendations
for reform of cohabitation law in this parliamentary term. 49

49

HC Deb 6 September 2011 cc15-16WS

19 "Common law marriage" and cohabitation

6. Scotland
Under the Family Law (Scotland) Act 2006, which came into force in
May 2006, cohabitants (opposite sex and same sex couples) may make
limited claims against each other in the event of their relationship
terminating or on the death of one cohabitant. However, couples living
together do not have the same rights as married couples and civil
partners. In May 2006, the Scottish Executive produced a leaflet
entitled Family Matters: Living Together in Scotland which provides
information about the law on cohabitation and the rights introduced by
the 2006 Act. 50 This states that common law marriage does not exist
in Scotland and that cohabiting couples do not have the same rights as
married couples and civil partners:
Common law marriage
It is a common misunderstanding that a couple will have
established a common law marriage after living together for a
period of time. This is not the case. Common law marriage does
not exist in Scotland. Even if you have lived with your partner for
many years, you do not have the same rights in law as a married
person does. There was a type of irregular marriage called
marriage by cohabitation with habit and repute which could
apply to couples who had lived together and were thought to be
married. This was rarely used in practice and, except for very
particular circumstances, was abolished by the 2006 Act.
Cohabitants rights
The 2006 Act has introduced a set of basic rights to protect
cohabitants, either when their relationship breaks down, or when
a partner dies. But the law is very clear: couples living together do
not have the same rights as married couples and civil partners. It is
very important that you understand this when deciding whether
to move in with your partner or to make a formal commitment. 51

Citizens Advice Scotland provides further information:

50
51
52

Living together and opposite sex marriage: legal differences;

Living together and same-sex marriage: legal differences. 52

Family Matters Living Together in Scotland, May 2006

Ibid p2

Accessed 9 February 2016

Number 03372, 9 February 2016 20

7. Northern Ireland
In Northern Ireland, cohabitants are now given legal protection in
several areas. However, they and their families have significantly fewer
rights and responsibilities than their counterparts who are married or
who have formed a civil partnership. 53 The NI Direct website provides
further information:
Most people think that after they've been living with their partner
for a couple of years, they become 'common law husband and
wife' with the same rights as married couples. This is not the case.
In fact, couples who live together have hardly any of the same
rights as married couples or civil partners.
There is no such thing as 'common law marriage'.
If you are living together as a couple, there are steps you can take
to protect yourself and your partner.
There are also ways to minimise the legal and financial problems
which may arise if, as can happen, you decide to separate, or if
one of you dies.

Citizens Advice provides further information, Living together and

marriage: legal differences (Northern Ireland). 54

53
54

NI Direct, Marriage, civil partnerships and cohabitation [accessed 9 February 2016]

Accessed 9 February 2016

The House of Commons Library research service provides MPs and their staff
with the impartial briefing and evidence base they need to do their work in
scrutinising Government, proposing legislation, and supporting constituents.
As well as providing MPs with a confidential service we publish open briefing
papers, which are available on the Parliament website.
Every effort is made to ensure that the information contained in these publically
available research briefings is correct at the time of publication. Readers should
be aware however that briefings are not necessarily updated or otherwise
amended to reflect subsequent changes.
If you have any comments on our briefings please email [email protected].
Authors are available to discuss the content of this briefing only with Members
and their staff.
If you have any general questions about the work of the House of Commons
you can email [email protected].
Disclaimer - This information is provided to Members of Parliament in support
of their parliamentary duties. It is a general briefing only and should not be
relied on as a substitute for specific advice. The House of Commons or the
author(s) shall not be liable for any errors or omissions, or for any loss or
damage of any kind arising from its use, and may remove, vary or amend any
information at any time without prior notice.

BRIEFING PAPER

Number 03372, 9 February

2016

The House of Commons accepts no responsibility for any references or links to,
or the content of, information maintained by third parties. This information is
provided subject to the conditions of the Open Parliament Licence.