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Common law marriage - the myth lives on

Posted: 04/04/2019


Society today is wonderfully diverse. There are those things which can be obvious: race, age and gender. There are also those aspects of a person’s life which we may only come to learn of if they choose to share them with us: religious and spiritual beliefs, sexual orientation and some disabilities. Within this latter category is ‘family type’. Fifty years ago it was not uncommon for a couple in a long-term relationship to be assumed to be married. Today, it is widely recognised that two people who are committed to spending the rest of their lives together may choose to do so with or without the exchanging of rings.

The statistics

Cohabiting couples are the fastest growing family type in the UK. Data published by the Office of National Statistics put the number of cohabiting couples (including same sex couples) at slightly over 1.51 million in 1996. In 2017 this figure had more than doubled to 3.291 million.  

Worryingly, findings of the National Centre for Social Research published in January 2019 show that 46% of individuals surveyed believe that cohabiting couples benefit from a ‘common law marriage’ and enjoy the same legal status and rights as those who are married.

This is far from the truth.

The differing legal positions

Despite the large number of cohabiting families, legislation has failed to keep pace with social change and unmarried couples still have significantly fewer legal remedies available to them in the event of relationship breakdown than those who are married or in a civil partnership.

If a marriage or civil partnership ends then the court has wide ranging powers to divide and redistribute property and other capital assets between the parties to achieve fairness between them. Generally, the starting point for married couples is that the assets acquired during the marriage are shared equally (regardless of whose name they are in) provided this meets both parties’ needs, and those of any children of the family. Assets owned by one party prior to the marriage, or acquired after the date of separation, can also be used to meet needs if necessary. Additionally, the court has a wide discretion to make orders in respect of income and pensions, so that one party may receive ongoing financial provision from the other for as long as they reasonably require it. This is particularly foreseeable if there are children of the family and one party has sacrificed their career in order to care for them.

Compare this to the position of cohabitants and the difference is stark. The starting point for the court is not one of fairness, or even of ensuring that the parties’ most basic needs are met, but instead is to look at strict legal ownership. If the family home (for example) is held in one party’s sole name it is therefore possible that the other party may walk away, on the relationship ending, with no share at all in the property and no capital or income of their own with which to rehouse. The position is the same whether the couple have shared the property for six months, or sixty years.

In these cases the party without a legal interest will have to rely on property and trust law doctrines in order to try to establish that they have a beneficial interest in the property, on the basis that this was the common intention of both parties to the relationship. This is done by instigating proceedings under the Trusts of Land and Appointment of Trustees Act 1996 (TLATA). It is a complex area of law and bringing a claim can be extremely (often, prohibitively) expensive. Even if a party can afford their own legal fees, if a claim is brought which is ultimately unsuccessful then they will be at risk of paying their ex-partner’s costs on top of their own. This means that the legal remedies that are designed to protect the economically vulnerable are often rendered effectively redundant as those same people regularly do not have the financial means with which to access them.

Cohabiting couples with children have slightly wider options, as in this case there are additional claims that can be brought under Schedule 1 of the Children Act which may enable the main carer of the children to continue living with them at the family home (or a second property, if resources allow) until they turn 18 or finish their tertiary education. This is however a time-limited remedy, as once the children reach adulthood the property will revert back to the economically stronger party.

In relation to maintenance, for unmarried couples without children there is no possibility at all of ongoing financial support for a dependent party (unless provided voluntarily), and for those with children provision is only available in limited circumstances, and in any event is neither automatic nor guaranteed.

It is important to note that maintenance for any children of the family (as distinct from the continuing obligation for one adult party to provide financial support to the other) is available whether the parents are married or cohabiting, and is primarily administered by the Child Maintenance Service.

Reform

Influential bodies within the legal profession including the Law Commission and Resolution, the national organisation of family lawyers, have been pressing for reform of the law in this area to enhance the rights of cohabiting couples for many years. However, at the time of writing, no legislation is on the horizon.

Protecting your position

The best way for cohabiting couples to protect their positions is to have clarity on how they intend to own property that they live in together if their relationship breaks down. As there is currently an absence of legislative reform, cohabiting couples who wish to avoid the cost, complexity and uncertainty of a legal claim can (provided they both agree) enter into a cohabitation agreement. This is sometimes referred to as a cohabitation deed. A cohabitation agreement is a way to provide clear evidence of a couple’s intentions at the outset of their relationship (or during). This can help to ensure that they are both fairly provided for in the event that their relationship comes to an end. A cohabitation agreement can provide for the following:

  • how separate and joint assets will be held or divided
  • liability for existing and future debts
  • legal declarations of trust to define the beneficial ownership of property registered in one party’s sole name
  • clarification and regulation of how the household expenses will be shared during the subsistence of the relationship
  • financial support between the parties (and for any children) during and after cohabitation.

Such agreements are designed to be bespoke to the individual couple/family, and can be as simple or comprehensive as they wish. In either event however there are legal formalities which must be complied with, and other important safeguards which must be observed (such as each party taking independent legal advice regarding the claims and obligations that they may have as a result of the agreement) to ensure that the agreement is legally effective and is likely to be upheld in the event that either party needs to rely on it in the future.


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