The Common Law Marriage Myth UK: Why Cohabiting Couples Have No Automatic Inheritance Rights

No. 'Common law marriage' does not exist as a legal status in England and Wales. It is a widespread and dangerous myth — dangerous because millions of cohabiting couples falsely believe they have the same legal rights as married couples or civil partners. They do not. WHAT THE LAW ACTUALLY SAYS: there is no legal status of 'common law husband' or 'common law wife' in English law. A couple who have lived together for 50 years, bought a house together, had children together, and introduced each other as husband and wife have — as far as the law is concerned — no status greater than two unrelated individuals living at the same address. ON DEATH WITHOUT A WILL (INTESTACY): the intestacy rules (Administration of Estates Act 1925 as amended by the Inheritance and Trustees' Powers Act 2014) distribute the estate to: the spouse or civil partner, then children (including children of a deceased spouse), then parents, then siblings, then half-siblings, then grandparents, then uncles and aunts, then half-uncles and aunts, then the Crown (bona vacantia). A cohabiting partner does not appear in this list at any level. They receive nothing whatsoever under the intestacy rules — regardless of how long the relationship has lasted, how financially dependent they were on the deceased, whether they lived in the deceased's home, or whether they had children together. JOINT ASSETS: the only exception is jointly-owned property held as joint tenants (not tenants in common). Joint tenancy property passes automatically to the surviving co-owner by right of survivorship — this is not an inheritance right, it is a property law mechanism. It applies regardless of relationship status. But property held as tenants in common (or personal property such as bank accounts in sole name, ISAs, investment portfolios, pension pots, cars, jewellery) does not pass automatically. THE SCALE OF THE MISCONCEPTION: surveys consistently show that 50-60% of cohabiting adults believe they have some form of common law marriage rights. This has been described as the most dangerous legal myth in England and Wales.

Yes — but only if strict conditions are met, and a successful claim is not guaranteed. The Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA 1975) allows certain categories of person to apply to the court for 'reasonable financial provision' from a deceased's estate, even if they were not left anything by the will or by the intestacy rules. COHABITANT ELIGIBILITY (s.1(1)(ba)): a person can make an IPFDA 1975 claim as a cohabitant only if they were 'living in the same household as the deceased as the husband or wife or civil partner of the deceased' for the whole of the period of two years ending immediately before the death. Both conditions are strict: (a) FULL TWO YEARS: the couple must have lived together throughout the two years immediately before the date of death. A gap — however brief — in cohabitation (a temporary separation, a stay in hospital, a period living apart for work) can break the period and remove the cohabitant's right to bring a claim; (b) AS HUSBAND OR WIFE: the relationship must have been a committed, quasi-marital cohabitation — not merely sharing accommodation as lodgers or friends. Courts look at the nature of the relationship. A same-sex cohabitant must have lived with the deceased as if they were civil partners; (c) IMMEDIATELY BEFORE DEATH: the qualifying period must end with the death itself — not at some earlier point when cohabitation ended. If a couple separated two months before the death, the cohabitant cannot claim; (2) WHAT THE COURT AWARDS: if the cohabitant qualifies and brings a successful claim, the court can only award what is 'reasonable maintenance' — that is, income and capital needed for the claimant's maintenance. This is a lower standard than 'fair share' — for spouses, the standard is 'such financial provision as it would be reasonable in all the circumstances for a husband or wife to receive.' Cohabitants receive the lower standard of 'reasonable maintenance', not the higher spousal standard. Awards may include periodic payments, a lump sum, or transfer of property; (3) TIME LIMIT: a claim must be brought within 6 months of the date of the grant of probate or letters of administration. An application to extend this time limit can be made but requires court discretion; (4) PRACTICAL LIMITATION: IPFDA 1975 claims are costly, uncertain, and emotionally damaging. They require court proceedings against the estate and any other beneficiaries. The only certain way to protect a cohabiting partner is to make a will.

The outcome depends entirely on how the property is legally held — as joint tenants or as tenants in common — and whether the deceased partner had a will. JOINT TENANTS: if the couple hold the property as joint tenants, the deceased's share passes automatically to the surviving co-owner by the right of survivorship. This happens outside the estate and outside the will — it is automatic, does not require probate for the property itself, and is not affected by the intestacy rules. The surviving partner becomes the sole owner of the whole property. This is the only scenario where a cohabiting partner is automatically protected; TENANTS IN COMMON: if the property is held as tenants in common (whether equal or unequal shares), each partner owns a distinct share which forms part of their estate. On death without a will, the deceased's share passes under the intestacy rules — which means it passes to the deceased's relatives (spouse from a prior relationship, children, parents, siblings) and NOT to the cohabiting partner. The surviving cohabitant may find themselves owning 50% of the property alongside their deceased partner's relatives; HOW TO CHECK: the method of co-ownership is registered at HM Land Registry. The proprietorship register entry shows 'no disposition by a sole proprietor' if the property is owned on a tenancy in common with a restriction — this is the key indicator. Most conveyancers advise joint tenancy for couples buying together, but many existing properties are held as tenants in common; SEVERING A JOINT TENANCY: a joint tenancy can be severed (converted to a tenancy in common) by a written notice or certain other acts. Severing a joint tenancy ends the right of survivorship — meaning the deceased's share can then be directed by will. Some cohabitants inadvertently sever their joint tenancy through a separation agreement, a charging order, or even (in some cases) by making a will that purports to dispose of their share. A severed joint tenancy, without a will to direct the share, leaves the deceased's share passing under the intestacy rules; PRACTICAL ADVICE: cohabiting couples who own property together should (a) check how it is held; (b) make wills that leave each other's share to the partner; (c) consider whether joint tenancy or tenants in common (with matching wills) is more appropriate for their circumstances.

Making a valid will is the only reliable way. There is no alternative that fully replicates the protection of a well-drafted will. WHAT A WILL DOES: a will in England and Wales can direct any asset the testator legally owns as their sole property. For a cohabiting couple, a will can: (a) leave all or part of the estate to the surviving partner — overriding the intestacy rules entirely; (b) appoint the surviving partner as executor — giving them control over the administration of the estate; (c) appoint the surviving partner as guardian of any minor children; (d) create a trust for the surviving partner's benefit (for example a life interest trust in the home, giving the partner the right to live there for life while preserving the capital for children); (e) include a residuary clause catching any assets not specifically dealt with; WILLS AND CHILDREN FROM PREVIOUS RELATIONSHIPS: a will for a cohabiting partner with children from a prior relationship needs careful drafting. Simply leaving everything to the cohabiting partner may disinherit the children. Life interest trusts and half-and-half structures can protect both; WHAT A WILL CANNOT DO: (a) override pension nominations — pensions pass to whoever is nominated with the scheme trustees, outside the will. Update your pension nomination separately; (b) override jointly-owned property held as joint tenants — that passes by survivorship regardless of the will. If you want a different outcome, sever the joint tenancy first; (c) override life insurance proceeds if written in trust — those pass to the trust beneficiaries; (d) bind the surviving partner from changing their own will — a will does not prevent the survivor from making a new will after your death. For binding arrangements, mutual wills or a life interest trust structure is required; COHABITING COUPLE CHECKLIST: (1) Each partner makes a will leaving their estate (or appropriate portion) to the other; (2) Check joint property is held in the right way (joint tenants vs tenants in common) and matches the wills; (3) Update pension nominations; (4) Write life insurance policies in trust for the cohabiting partner; (5) Consider whether a declaration of trust for any property is needed to record beneficial ownership shares; COST: making a will is relatively inexpensive. WillSafe UK provides a complete DIY will kit for England and Wales from £35.

As of 2026, England and Wales has not reformed the law to give cohabiting couples inheritance rights equivalent to married couples or civil partners. The Law Commission has repeatedly recommended reform. The position is as follows: (1) LAW COMMISSION RECOMMENDATIONS: the Law Commission of England and Wales recommended reform of cohabitation law in its 2007 report 'Cohabitation: The Financial Consequences of Relationship Breakdown' (Law Com No 307). The report recommended an opt-out scheme giving qualifying cohabitants financial claims on separation and on death — based on the Scottish model. The Government rejected the recommendations in 2011 and has not implemented reform; (2) SCOTTISH LAW: Scotland has gone further than England and Wales. The Family Law (Scotland) Act 2006 ss.25-29 gives cohabiting partners the right to apply to the court for a financial award on death and on separation, subject to conditions. The court can make a capital sum payment from the deceased's estate to a surviving cohabitant who satisfies the qualifying conditions. Scotland does not give full intestacy rights to cohabitants but does provide a statutory court remedy beyond mere maintenance; (3) CURRENT POSITION IN ENGLAND AND WALES: cohabiting partners have only the IPFDA 1975 route (the 2-year qualifying period, reasonable maintenance standard). No statutory scheme similar to Scotland has been introduced. Reform requires primary legislation and has not been prioritised; (4) PRACTICAL IMPLICATION: as the law currently stands, cohabiting couples in England and Wales remain unprotected by the intestacy rules and are not expected to gain statutory inheritance rights in the near future. The only reliable protection is a will. Scotland-based cohabitants have marginally better but still limited statutory rights; (5) CIVIL PARTNERSHIP: cohabiting couples who want full legal protection — including inheritance rights, spousal IPFDA 1975 standard, and intestacy rights — can register a civil partnership. Civil partnership gives exactly the same legal rights as marriage in England and Wales, including the intestacy right that a married spouse receives (statutory legacy currently £322,000 + half the remainder, or all the estate with no children). Registering a civil partnership is relatively straightforward.