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Common Law Marriage and Cohabitation

Feb 23, 2016   ·   4 minute read

“Common law marriage and cohabitation”

The government has recently produced the above document which provides general information on the number of cohabiting couples, how the current law applies to them, and the proposals for reform that have been put forward by the law commission.

Common law marriage refers to when a couple live together in a stable relationship, with or without children. It is often an option to describe your marital status on commercial documents such as insurance forms. However, it has no legal basis in England and Wales. Unlike within the forms of union of either marriage or a civil partnership, cohabitation provides no legal protection for the couple in terms of financial, or inheritance issues if the couple separate or one dies. This is why it is an area of concern for the government.

To add further cause for concern, the government has reported that the number of cohabitants (opposite sex only) between 1996 and 2015 doubled from 1.5million to 3.1million, and the number of children in these relationships increased. The number of same sex cohabiting couples increased from 16000 to 90000, despite the introduction of civil partnerships and marriages for such couples. At the same time the number of married couples has remained roughly the same, and the number of children to married couples have fallen.

The main problems for cohabitants are as follows:

  • They have no guaranteed rights to each other’s property. On separation, the courts have to apply the strict letter of the law regarding ownership. It is sometimes possible when the property is owned just by one person for the other to establish that they have a ‘beneficial interest’, but the law is far from certain and each case is decided on its own specific facts.
  • Where a cohabitant dies without a will (intestate) the surviving cohabitant has no automatic right to any of the deceased’s estate. They could make a claim, but this requires a court case.
  • With regard to social security, cohabitants do not benefit from contributory based benefits which look at national insurance contributions. For example, they cannot rely on their partner’s state pension contributions

As a family lawyer, it is of primary concern to me that cohabitants face significant difficulties sorting out their financial situations upon relationship break-down. Whilst there have been a number of recent cases which demonstrate that a cohabitant who does not legally own a family home can establish that they have some interest in that property, to do so often requires the instruction of a solicitor to set out the legal grounds for a claim in the family home and a dispute with the ex-partner. This is something many are keen to avoid and consequently the non-legal owner may decide to settle the case at an early stage or not pursue it all. Therefore, financial hardship upon the breakdown of a relationship is a realistic possibility in many cases.

The Law Commission proposed in July 2007 that a scheme of financial remedies on separation for cohabitants should be introduced. Their proposal was that the financial remedies should be available based on what each individual contributed (rather than what they needed which is the primary case for married couples on divorce). They did not propose that the property should be divided equally nor that there should be the ability to obtain maintenance from the ex-partner (save for child maintenance).  Unfortunately, no government has decided to implement the reforms since they were proposed, and for separated cohabitants their situation remains very uncertain.

In the absence of any imminent reforms to the law, the current best option for cohabitants who are concerned about property issues is to enter into a Cohabitation Agreement or Living Together Agreement which is a form of contract setting out a couple’s decisions about what will happen to their property on separation. It works in a similar way to a prenuptial agreement and if drafted properly by a specialist family lawyer would be upheld by a court.

If you are interested in a Cohabitation Agreement, or have any concerns about financial matters following a recent separation, please do not hesitate to contact me.