Common Law Marriage Is a Myth: The Legal Rights of Unmarried Couples

Reviewed 30 October 2026 · England and Wales (Scotland differs) · General information, not legal advice

Living together gives you no rights against each other, however long it lasts. Property goes by ownership and trust law, children's claims come under the Children Act 1989, and a surviving partner inherits nothing without a will.

There is no such thing as a common law marriage in England and Wales. Living together for two years, ten years or forty years gives neither partner any right to maintenance, a share of the other's property or a pension, and if one of you dies without a will the survivor inherits nothing under the intestacy rules. The rights you do have come from the ordinary law of property and trusts, from the Children Act 1989 where there are children, and from any agreement you make yourselves. This guide explains how each area works, what happens on death and incapacity, the documents that protect you, and the government's 2026 consultation on a new scheme for cohabitants.

No legal status, however long you live together

Marriage and civil partnership trigger a package of rights: the court's power to divide assets and order maintenance on separation, pension sharing, automatic inheritance, the spouse exemption from inheritance tax and recognition as next of kin. Cohabitation triggers none of them. Surveys repeatedly find that almost half of people living together believe they have common law marriage rights; the belief has no basis in the law of England and Wales and has not had since 1753.

The law does treat cohabiting couples as a unit in a few places, mostly to their cost. Means-tested benefits such as Universal Credit assess partners who live together as a couple. Protection from domestic abuse does extend to cohabitants: anyone who lives or has lived with a partner is an associated person under the Family Law Act 1996 and can apply for a non-molestation or occupation order. For money and property, though, the starting point is that each of you owns what is in your name.

Who owns the home: trust law and TOLATA

Disputes about the home are decided under the law of trusts, usually in a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), heard in the civil courts with the usual rule that the loser pays the winner's costs.

If the property is in joint names, start with the paperwork. When you bought, you should have declared whether you hold as joint tenants or tenants in common and, if the latter, in what shares; a declaration of trust is normally conclusive, whatever each of you paid. See joint tenants versus tenants in common. Without a declaration, Stack v Dowden (2007) and Jones v Kernott (2011) make equal shares the starting point, displaced only by evidence that you intended something different, judged from the whole course of dealing, including unequal contributions, separate finances or a later change of plan.

If the property is in one name only, the other partner owns nothing unless they can prove a common intention constructive trust: an express agreement or promise that the home would be shared, relied on to their detriment, or an intention inferred from direct contributions to the purchase price or mortgage. Paying bills, buying furniture or decorating generally does not count, and years of unpaid work in the home earn no share. Proprietary estoppel, where a clear assurance was made and relied on, is the other route. These claims are expensive, uncertain and hard on the person who gave up work to care for children. A declaration of trust signed when you buy, or a cohabitation agreement, avoids the argument altogether, and property solicitors will prepare one alongside the conveyancing.

Renting is simpler but no kinder: if the tenancy is in one name, the other partner has no automatic right to stay when the relationship ends or the tenant dies, beyond any succession right the tenancy itself gives, although the court can transfer some tenancies between former cohabitants under Schedule 7 to the Family Law Act 1996.

Children: parental responsibility and financial claims

Children change the picture, because the law protects the child rather than the parent. A mother has parental responsibility automatically. An unmarried father has it if he is named on the birth certificate at a joint registration (for births registered from 1 December 2003), by a parental responsibility agreement with the mother, or by court order; see parental responsibility explained. Where the child lives and how much time they spend with each parent is decided exactly as for married parents, by agreement or a child arrangements order.

Child maintenance is identical too: the Child Maintenance Service formula applies whether or not the parents were married; see how child maintenance works. Beyond that, Schedule 1 to the Children Act 1989 lets a parent apply for a lump sum, for a property to be bought or transferred to house the child, or for top-up maintenance where the paying parent earns more than £3,000 a week or there are school fees or disability costs. The property usually reverts to the paying parent when the child reaches 18 or finishes education, and the award is for the child's benefit, so the carer's own needs are met only as part of caring for the child. Schedule 1 matters most where one parent is wealthy; for most separating couples the CMS is the only maintenance route.

If your partner dies

Death exposes the gap most brutally. Under the intestacy rules a surviving spouse or civil partner inherits everything, or the first £322,000 plus half the rest where there are children; a surviving cohabitant inherits nothing, however long the relationship, and the estate passes to the deceased's children, parents or siblings. See the intestacy rules explained. A home held as joint tenants passes to the survivor automatically whatever the will or intestacy says, but a share held as tenants in common passes under the will or the intestacy rules, and the surviving partner may have to buy it from the family or move out.

A cohabitant who lived with the deceased as if married for the whole of the two years before death can apply under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable provision for their maintenance, within six months of the grant of probate. It is a claim, not an entitlement, it is limited to maintenance rather than a share, and it means litigation against the deceased's family at the worst possible time.

Pensions are decided by the scheme. Many pay a survivor's pension to a partner only if a nomination was made or financial interdependence can be shown, and death-in-service lump sums go where the trustees decide, guided by any expression of wish form. Inheritance tax has no exemption for an unmarried partner, so everything above the £325,000 nil-rate band passed to the survivor is taxed at 40%, and the extra residence allowance applies only to direct descendants; see inheritance tax explained. One improvement: since 9 February 2023 Bereavement Support Payment has been available to a surviving cohabiting partner with dependent children.

Next of kin, illness and incapacity

The phrase next of kin has no legal definition in England and Wales. Hospitals will usually speak to whoever the patient names, but if your partner loses the ability to make decisions nobody, married or not, has an automatic right to make them. Under the Mental Capacity Act 2005 doctors and banks act in the person's best interests after consulting those close to them, and a spouse has no more legal power than a cohabitant. The difference is practical: a cohabitant is more easily sidelined by family members.

The answer for both is a lasting power of attorney for health and welfare and another for property and financial affairs, each registered for a fee of £92 since 17 November 2025; see what a lasting power of attorney is. Without one, the partner must apply to the Court of Protection to be appointed deputy, which takes months and costs far more.

Protecting yourselves: agreements, declarations and wills

Five documents close most of the gaps:

1. A declaration of trust recording who owns what share of the home and what happens to the proceeds on sale or separation.
2. A cohabitation agreement covering who pays the mortgage and bills, how joint accounts and debts work, what happens to the home, furniture and pets if you separate, and arrangements for children. Made as a deed with independent advice and disclosure, it is enforceable as a contract.
3. Wills for both of you. Without one your partner gets nothing. See how much a will costs.
4. Pension nominations and expression of wish forms for every scheme, and life insurance written in trust so that it pays out quickly and outside the estate.
5. Lasting powers of attorney.

Most family law solicitors offer fixed fees for cohabitation agreements and declarations of trust, and the cost is a fraction of a TOLATA claim. Compare family law solicitors in Liverpool or the solicitors in Sheffield page, and ask for a fixed quote for the package. Couples who later decide to marry should read about prenuptial agreements, since marriage changes everything described here.

Reform: the 2026 consultation

The government has promised to act on cohabitation rights, and between 5 June and 14 August 2026 the Ministry of Justice consulted on a scheme in its paper A fairer end to relationships. The proposal is an opt-out regime for eligible cohabitants, meaning couples who have lived together for three years or more or who have a child together. Each would keep what they own, and the court could depart from that only to meet needs, assessed more narrowly than on divorce, with children's welfare first, a clean break as the aim and maintenance only in exceptional, time-limited cases. Claims would have to be made within two years of separation, couples could opt out by a deed made with disclosure and independent advice, and qualifying cohabitants would gain an automatic entitlement on intestacy. No response or Bill had been published by 30 October 2026, so none of this is law. Scotland is already different: the Family Law (Scotland) Act 2006 gives former cohabitants a limited claim for financial provision, which must be made within a year of separating, and a discretionary claim on a partner's estate if they die without a will.

Until the law changes, the position is simple and harsh: living together creates no rights between you, and the only protection is the paperwork you put in place yourselves.

Frequently asked questions

After how many years does a cohabiting couple get legal rights?

Never, as the law stands in England and Wales. Time together does not create rights to maintenance, property or pensions. The only place a period matters is on death, where a partner who lived with the deceased for the whole of the two years before death can claim maintenance under the Inheritance Act 1975. The 2026 proposals would use three years, or a shared child, as the qualifying test.

My partner owns the house and I have paid towards the mortgage. Do I own a share?

Possibly. Direct payments towards the mortgage can support the inference that you both intended you to have a share, especially alongside conversations about the home being joint. The court then decides what share is fair. Payments towards bills, food or decoration rarely count. Keep evidence of what you paid and what was said, and take advice before leaving or stopping payments.

Can my partner claim maintenance from me if we split up?

Not for themselves. There is no cohabitant maintenance in England and Wales, whatever the length of the relationship or the sacrifices made. Maintenance for your children is a different matter: the Child Maintenance Service formula applies, and where you earn over £3,000 a week, or there are school fees or disability costs, a court can order more under Schedule 1 to the Children Act 1989.

What happens to a joint mortgage when we separate?

You both remain fully liable to the lender until the mortgage is repaid or one of you is released from it, which the lender will agree only if the remaining borrower can afford it alone. If you cannot agree whether to sell, either of you can apply to the court under TOLATA for an order for sale and a decision on shares. Consider severing a joint tenancy so your share passes under your will.

Am I my partner's next of kin?

The term has no legal meaning, so nobody is. Hospitals will usually involve whoever the patient nominates, but neither a partner nor a spouse has power to make decisions for an adult who has lost capacity unless appointed under a lasting power of attorney or by the Court of Protection. Registering lasting powers of attorney for each other removes the uncertainty.

Will the 2026 reforms give unmarried couples the same rights as married ones?

No. The scheme consulted on is deliberately narrower than divorce law: each partner keeps their own assets, the court can intervene only to meet needs, maintenance would be exceptional and time-limited, and couples could opt out. It would be a significant change from nothing, but not equivalence with marriage, and as at 30 October 2026 it remains a proposal.

Related guides

• Joint Tenants vs Tenants in Common: Which Should You Choose?
• What Happens If You Die Without a Will? The Intestacy Rules Explained
• Parental Responsibility: Who Has It and How to Get It
• Child Maintenance: How It Is Calculated, Paid and Enforced
• Are Prenuptial Agreements Legally Binding in the UK?

This guide describes the law in England and Wales (Scotland differs) as at 30 October 2026. It is general information, not legal advice about your situation; the law and the figures it quotes change, so check the position with a solicitor before acting. LawFirms.co.uk is a directory and does not provide legal services.