Introduction: Part 5 (3mins)

Common-Law Marriage exists… right? WRONG!

Not legally married

Living together is not the same as marriage: Especially in the UK.

When I lived for ten years with my children’s father we had three children, and when the relationship abruptly ended, the phrase: “Well it’s the same as being married” – proved to be a lie. You can tell yourself that while you are together, but don’t be foolish enough to think it’s the same when you are splitting up.

Common-law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a form of irregular marriage that survives only in eight U.S. states and the District of Columbia; plus two other states that recognise domestic common law marriage after the fact for limited purposes. In the UK at the time of writing (2020) there are huge differences between being legally married and cohabiting.

Here are some of the myths busted – discovered through my own personal experience:

You think you’ll get some of his pension?  – Wrong. You are not eligible for any of it.

He has a pension. I have none. My career was put aside to look after the kids, and the pension that was going to support both of us became just his. If we had been married, I would have had a claim to half of it. But because we were not legally wed, I get nothing. And it’s hard to create a secure pension from scratch at 40 with no job and three small children to look after.

You think you have half the value of the house?  – Wrong.

If your name is not on the deeds, it’s not your house.

If you have dependent children you may be able to stay there until they reach sixteen, at which point you yourself become homeless, with no property, unless you’ve been able to save up for one whilst bringing up the kids.

In my case, the family home didn’t have my name on the deeds, even though I had financially contributed to the running of the household whilst he paid the mortgage. But I couldn’t stay there with the kids because it had to be sold to cover the debts I didn’t know he had amassed. Thank goodness that by not being legally married, I wasn’t liable for his debts – one benefit at least.

You think you will get some money to cover your role as a stay at home parent while he continues to build his career?  – Wrong. No spousal maintenance because you are not a spouse.

A percentage of his gross salary (minus his pension payments) will be provided as a contribution for the children’s needs, but you yourself get nothing. No maintenance. If you want to buy a pair of shoes for yourself, you need to go out and earn it. Thank god for Working Family Tax Credit in the UK to top up your income and help cover childcare costs when you get a part-time job.

‘Common Law Marriage’ is a Myth

Just over half the population still think that common law marriage exists in law, according to a British Social Attitudes survey: 51% of those surveyed believe that cohabiting couples are protected by ‘common law marriage’. But they are mistaken. In the US it’s even more confusing as some States recognise certain rights for cohabitees but they vary enormously. You can find out more here.

So if you find yourself not married but financially dependent on your partner, with children to care for, what can you do about it?

Well, plenty of married of couples who thought it was too “unromantic” to get a prenup, are later on seeing the light – and getting themselves a postnup. If you are living together, you can create a Cohabitation Agreement at any point. It may not have the full strength under the pressure of litigation as a marriage license, but it will be taken seriously by any reasonable judge if put to the test.

But the whole point is that you shouldn’t have to end up fighting about who gets what if the relationship ends, or how much is needed to bring up your family, because you have already sat down and worked it all out in advance.

But what if it’s too late and you are already splitting up?

Don’t turn it into a big legal battle. If there are disagreements, use dispute resolution methods (mediation, collaborative practice, arbitration) – don’t use the courts to wage war out of anger. It’s a bad enough experience when you have some legal rights through marriage, but when you cohabit, it really is worth avoiding at all costs, unless your Ex is throwing you and the children out of the family home for example. There are some legal options but they are usually time-consuming (taking years to get a result) and expensive.