Tales and myths of a common law marriage

Cohabitation|Relationships|January 23rd 2019

Nearly half of people in England and Wales believe that unmarried couples living together have the same rights and obligations as couples who are legally married or who have entered into a civil partnership.

This could not be further from the truth. In fact, common law marriage is a complete myth.

Research just undertaken by the University of Exeter and the National Centre for Social Research, shows that 46% of those asked, believe that unmarried couples living together (cohabiting couples) were part of a common law marriage and, as a result, had equal protection to married couples in the event of their relationship breaking down.

Cohabitation does not provide any legal status to a couple living together.

At the same time, cohabiting couples now account for the fastest growing household in England and Wales.  The number of opposite sex cohabiting couple families with dependent children has almost doubled in the last decade and nearly 50% of children are born to parents who are not married.

The difference between cohabiting couples and couples who are married or in a civil partnership could not be more significant.

In the event of a couple living together but not married or in a civil partnership, separating, the result is often, according to the University of Exeter, severe financial hardship for the more vulnerable financially weaker party.

For example, there is no right to claim maintenance, there is no ability to share pensions and there is no ability to share property unless that property is jointly owned.

The University of Exeter concludes by saying “it is absolutely critical that we raise awareness of the difference between cohabitation, civil partnership and marriage and any differences and rights that come with each.”

This is not a new issue.

Previous governments have been advised by the Law Commission, an independent body which advises governments on the need for law reform, that they needed to act.  The Law Commission even drafted a Bill to go before parliament.  Some limited protection was put in place in Scotland but not in England and Wales.

The need for reform and change could not be more urgent.

In the meantime, we can offer some practical advice.

If you are thinking of living with someone and not getting married, or if you already are living with someone, consider entering into a “living together agreement” and also consider whether any documents should be drawn up in relation to any property which you may own, for example setting out your rights in relation to that property, when it could be sold and what happens on sale.

If, on the other hand, you are thinking of separating from your partner, or already have, don’t give up.  If you have children, there are certainly ways of obtaining financial support for them, including the provision of a home, and it may be that even if the property is in the name of your partner, you may still have certain rights in relation to it.

At Stowe we have a number of solicitors, including myself, who specialise in cohabitation, please do contact us at the details below.

Graham is based at the firm's London Chancery Lane office. His career as a family law specialist has spanned three decades. He is an experienced advocate, mediator and arbitrator who has worked in all areas of family law.

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