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Cohabiting Couples: the Myth of the Common Law Marriage

Paul Linsell

Resolution has launched a national campaign this week to try to raise awareness of the legal rights of unmarried, cohabiting couples. It is an issue that is becoming ever increasingly more important, with cohabiting unmarried couples continuing to be the fastest growing family type in the UK. Paul Linsell, senior solicitor in our Family law team, explains.

As the law currently stands, such couples do not have an automatic right to make claims against one another in the event of the relationship breaking down. It therefore still comes as an unwelcome surprise to many that there is no such thing as a ‘common law spouse’ and that despite potentially living together for decades they won’t have the same rights and protections as they would have had if they had been married.

If there are matters that cannot be agreed between cohabitees, then claims would primarily be dealt with under property, contract and trust law. Fundamentally, the distinction is that with unmarried couples the court’s powers are simply declaratory (i.e. what the ownership is or was intended to be of a particular asset). This is a stark contrast to the powers with married couples where the court can redistribute assets, with concepts of discretion and fairness being dominant.

A simple illustrative example highlights the distinction. Imagine a couple, lets call them Peter and Jenny, have lived together for twenty-five years. They have two children, both now grown up and living independently. Jenny gave up her career to care for the children, while Peter was the main breadwinner, with his career going from strength to strength. The family home has been lived in by Peter and Jenny for the last fifteen years, but it is registered in Peter’s sole name and Jenny hasn’t contributed to it financially.  What will happen if Peter and Jenny decide to end their relationship? If Peter and Jenny are married, Jenny might expect to receive something like 50% of the equity in the family home and possibly ongoing support from Peter. The court would recognise the contribution made by Jenny in raising the children, allowing Peter’s career to flourish and will seek to redistribute ‘matrimonial’ assets, including the family home. However, if Peter and Jenny are not married, Jenny is likely to walk away with nothing. She has no interest in the family home so is not entitled to any of the value, nor is she able to claim any ongoing maintenance from Peter.

Unfortunately, this situation is made worse still when, as is a common occurrence, people believe they have rights that they simply don’t have. Sadly, we often face situations where people like Jenny come to see us and there is little we or the law can do to assist. It seems unfair and arguably the law has perhaps not caught up with modern society.

So what can be done in these situations? If you or anyone you know is in a cohabiting relationship, the following are crucial points to consider:

  1. Know your rights and seek legal advice. The claims that do exist between unmarried cohabitees are complex, particularly if there are dependent children involved. These are not covered in this article, but it is wise to be informed about what these are.
  2. Document your intentions from the start: put yourself in a place of security regarding finances and property by drawing up an agreement with your partner. A cohabitation agreement can offer reassurance and provide clarity to help avoid future dispute.
  3. Consider taking out life insurance and making a Will. It is not just in the event of a relationship breakdown where the legal rights are different; the position is also the same in the event of death, with cohabitees having no automatic inheritance rights.
  4. Spread the word – inform people you know who are in this situation so they too can protect themselves.
  5. Join the Resolution campaign asking the Government to review laws relating to cohabiting couples.

For more information about any of the issues raised in this article, please contact a member of our specialist Family law team.

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.