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Common law marriage – fact or fiction?

Cue the lawyer’s answer: it’s not straightforward. In simple terms, there is no legal reality to the term “common law marriage”. Living together with another person as a couple does not give you additional legal rights and there are no in-built protections for couples in the event the relationship ends in separation or either party dies.

However, it is easy to see why the concept remains alive and well in the popular imagination. The state does in fact treat cohabiting couples differently from, say, friends in a house-share in a series of situations. For example, couples living together are obliged to claim benefits as a household and can inherit certain social housing tenancies from one another. Couples that have children together have the right to claim child maintenance and (sometimes) other forms of financial support from each other after separation. What is lacking is an overarching scheme to deal with the financial consequences of the breakdown of a cohabiting relationship and cases where one partner dies without a will.

Recent research carried out by the National Centre for Social Research indicates that 46% - almost half – of people in England and Wales think there is such a thing as common law marriage. It is really worrying that a substantial number of people think the law will be “there for them” simply because they are in a cohabiting relationship when it just won’t.

The difficulties cohabitants sometimes face only raise their heads at crisis points, namely separation and bereavement and a confusing patchwork of laws will apply. We need to do better as a country and at least begin a national conversation about how we protect some of the most vulnerable cohabitants: women who have sacrificed a career in order to care for children, elderly cohabitants, individuals who have moved into their partner’s property.

Some, though I suspect a minority, are making an active choice not to marry, precisely because they wish to avoid the mutual legal obligations that come with marriage and civil partnership. However, many just fall into cohabitation and only find out about the vulnerability of their position when it’s too late. People live together in a huge variety of different circumstances and it would not be straightforward to create a single scheme that would do justice for all. This is no excuse for inaction though.

None of the many solicitors, barristers and social reformers campaigning on the issue advocate importing wholesale the legal rights and responsibilities that come with marriage into the lives of all cohabiting couples. They have, for years, talked about a basic scheme to prevent financial hardship and injustice (they have such a scheme in Scotland), potentially with opt-outs for those who wish to keep their affairs entirely separate. However, in terms of actual action from the government, there appear to be no plans currently to take this forward.

In the meantime, it falls to us as family lawyers to do what we can to educate the public on their rights and what they can do within the current law to protect themselves. If you are in a cohabiting relationship or about to move in with someone, ask yourself these questions:

  • Who is the legal owner of the property we (are going to) live in?
  • How would the equity be divided in the event we split up and is that clear to each of us?
  • Does this split reflect our collective wishes and/or contributions?
  • If you own the home – do I understand that my partner could acquire a share of the equity, even if they are not the legal owner, depending on the financial arrangements between the two of us and discussions we might have?
  • If you are moving into a property without being on the legal title – do I realise that I may or may not acquire an interest in the property depending on our financial arrangements and that this can be very uncertain?
  • Would we benefit from a cohabitation agreement (dealing with all financial aspects of our life together) or a declaration of trust (dealing with our respective interests in a particular property)?
  • Do we have wills that reflect what we want to happen in the event one of us dies? Without a will providing for an unmarried partner, there is no automatic right of inheritance and the deceased’s estate will be inherited by their relations.

There are a few, relatively inexpensive, things cohabiting couples can do to put themselves on a more certain legal footing. We are more than happy to have an informal chat about your options. Please get in touch for more information.

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