Cohabitation and common law marriage

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November 12, 2015

London-based Stowe Family Law solicitor Sarah Snow was interviewed on Share Radio again this week. Statistics show that cohabiting relationships are the fastest growing family type in the country, so she was invited to discuss the issue with presenter Georgie Frost. She also talked about the myth of the common law marriage.

She explained that, despite a popular misconception among the general public, there is no such thing as a common law marriage in the UK. Married couples and those in a civil partnership have much greater levels of legal protection than cohabiting couples.

While some legal protections do exist for unmarried couples, they are not based on concepts of fairness. The worst-case scenario, Sarah explained, is that one partner could end up without a home after a breakup.

To listen to the full conversation, click here.

 

Transcript from Sarah Snow on Share Radio
GF:              Georgie Frost
SS:              Sarah Snow

 

GS:          Now more than six million couples in the UK cohabit. That’s up more than double the number 20 years ago but despite being referred to as having a common law spouse contrary to popular belief living with your partner currently carries no legal status in English law. Sadly this means that if things don’t work out or if one partner passes away splitting up and death can result in costly disputes with each other or with the family. One person who has witnessed that first hand is solicitor Sarah Snow from Stowe Family Law who joins me now:

GS:          Hi Sarah

SS:          Hi Georgie thank you for having me

GS:          You’re more than welcome than you very much for coming in. Let’s start with the basics here. We’ve heard the expression common law marriage. What does it mean it’s a bit of a misnomer isn’t it?

SS:          It is definitely there is no such thing as common law marriage. It’s a huge misconception amongst the public that really does need to be changed but I understand that one in four people actually believe that as cohabitants they have the same rights as married people which is just not the case at all.

GS:          Do you have any rights? A big question I know.

SS:          If you’re married or in a civil partnership you have statutory protection which gives the Court the power to redistribute assets in accordance with fairness and each party’s financial needs. Now in relation to cohabitants there is protection, it’s wrong to say there’s no protection whatsoever but the law in the area is very messy and complicated and it’s certainly in need of overhaul so if you and your partner are not married you are looking at separate and distinct areas of law depending on what you are looking to achieve. So for example if you are looking for an interest in a property that you lived in together you have to rely on a statute called the Trust of Land and Appointment of Trustees Act 1996 or if it’s in relation to an argument over money it might be a contract dispute so it’s much more a civil area of law than matrimonial and it isn’t dictated by fairness or need.

GS:          It’s not easy is it – it’s very complex. In terms of property you mentioned there what is the scenario if people don’t have any other protection in place.

SS:          Well, the worst case scenario is that the non-owner could be forced out onto the street. The problem is the onus is on the non-owner to show that they have an interest in the property, a beneficial interest, and they might do that by establishing it was the parties mutual intentions for them to share the property and they might also do it by showing that they made capital contributions to the property or helped with repair and renovation works but it’s not easy and ultimately it all comes down to who the Court believes and what evidence there is to back up what they’re saying.

GS:          Goodness me. Does having children muddy the water in this regard I guess.

SS:          Having children gives you slightly more protection. So if you have children you could have statutory protection in addition to Child Maintenance Service so the government body for child maintenance you could rely on a schedule 1 application and again under that under the Children Act the Court has the power to make property transfers or lump sum transfers to a parent for the benefit of the children so it does give you a little bit more protection but it’s very expensive and it is more complicated than if you were married.

GS:          Can going through disputes like this over property for example actually end up proving more costly than divorce proceedings.

SS:          More so yes. Without a doubt it can be more costly and the problem is this is a civil jurisdiction and you are potentially exposing yourself to a costs order so in the civil court the court has more robust powers to make costs orders against a losing party whereas it’s quite neutral in the family courts because the general rule is no order as to costs so you could go through the entire process, spend thousands and thousands of pounds, lose, and ultimately have to pay the other party’s costs as well so the risk – the stakes – are high definitely high.

GS:          With such high stakes then why do you think that so few people really understand this area.

SS:          I don’t think there’s enough information available in the public domain. I certainly think the media represents the myth of common law marriage and that appears in the press quite a lot and I also think that people think are under the impression that the government evolves and changes with society and recognises these more complex family structures which is a reasonable belief to have but unfortunately it’s many years behind.

GS:          So it’s not romantic and often when we talk about finances and relationships it isn’t but what can you do to make sure that you are protected?

SS:          You could enter into a cohabitation agreement and that would regulate the mechanics of your finances so you could set out what payments are being made and what they represent, what your joint intentions are and provided that it is done properly with legal advice it would go a long way to showing to the court that that was your mutual intention and interestingly we tend to find that people who have taken the trouble to enter into these cohabitation agreements tend to abide by it because their very intention from the start was to try and regulate their affairs and achieve a fair deal. You also would want to look at protection by way of will because as a cohabitant you have no protection if your partner dies intestate, so without a will. You have some level of protection under the Inheritance Act but that’s all dependent on need, so it’s important that there’s a will in place that regulates the division of their estate. You might also look at a declaration of trust in relation to a property that’s owned which sets out what proportion the shares are held and really shows to the court if it ever becomes necessary what the position was meant to be and what the intention was.

GS:          And what about the consideration, the pensions and the like?

SS:          Yes again that’s a consideration and you certainly nominate partners to have an interest in your pension if anything were to happen to you or certainly in relation to death in service benefits as well that’s something important that you can nominate your partner.

GS:          Also currently heterosexual couples, if I’m right, can’t have a civil partnership and it looks like that could be changing. Do you think that could change anything and give an option perhaps to some people?

SS:          Well what’s happened is that at the end of October there was a type of private members bill that called for a small amendment to the Civil Partnership Act because at the minute the Civil Partnership Act only applies to same sex couples and the amendment is talking about including provision for opposite sex couples so it would give parties the opportunity to either marry or enter into a civil partnership so if for any reason they were against the idea of marriage but wanted to regulate their affairs then they could enter into a civil partnership and they would be afforded statutory protection which would be dictated by fairness and need, but that’s going to be heard again, the second reading on 29 January 2016 I believe, so we’re not quite there yet but there is some progression.

GS:          Finally where can people go to get more information to find out what their rights are?

SS:          Well there’s a wealth of information on the internet. Marilyn Stowe’s blog is also very helpful. She produces a lot of blog posts on this issue because it’s a very political hot potato at the minute and also her book as well “Divorce and Splitting Up” has a lot of information on cohabitants’ rights as well but it’s important and I can’t stress enough that people think about this. It’s not romantic. It’s not the first thing you think about when you’re going to live with someone but it’s a pragmatic reality that people need to think about.

GS:          At which stage should people start thinking about – I suppose when you starting joining your finances and paying for ..

SS:          I think so – I think when you live together if one party is buying a property and the other person is not going to be held on the title for that I think that’s probably the step at which you need to think about protecting yourselves definitely.

GS:          Solicitor Sarah Snow from Stowe Family Law thank you so much for joining us. A pleasure as always. Thank you.