Common law marriage and everything there is(n’t) to know about it

The myth around the concept of common law marriage persists, despite it being just a myth.  Allied to this is a lack of understanding about the limited legal protection this 'non-status' provides.

With the number of cohabiting couples drastically increasing over the years, we have seen a spike in enquiries from unmarried couples. The Office for National Statistics (ONS) confirmed that there were 19.4 million families in the UK in 2020: an increase of 7.4% over the decade. Couples cohabiting has increased to 5.1 million from just 2.8 million in 2002. There has been a 50% decline in the rate of marriages between 1972 and 2019 (this is before one considers the impact of the pandemic).

As family law specialists, we have seen a dramatic increase in cohabitees seeking legal assistance in resolving issues - concerning both finances and children - arising from their separation.  Unfortunately, we find that many of these individuals have failed to seek legal advice early on in their relationships.  This is understandable; it certainly isn’t romantic to propose a meeting with solicitors about separation when deciding to move in together or try for a baby.  However, this could be something that you will be thankful for in the unfortunate event that your relationship breaks down at some point.

The law

Regardless of the length of your relationship, as a cohabitee, any claim you might have over your ex partner’s assets is likely to be weaker than if you were married (or in civil partnership).  Additionally, intestacy rules do not recognise a common law spouse.

Currently, a cohabitee can only make a financial claim against the other under property law (Trusts of Land and Appointment of Trustees Act 1996) or under Schedule 1 of the Children Act 1989 if seeking provisions for the benefit of a child.  Child maintenance can be sought separately through the Child Maintenance Service (CMS) for children under the age of 16 or under 20 if they are still in full-time education.

We can advise you on how you can seek child maintenance, a lump sum to meet a specific child’s needs, housing for them, school fees payment or additional payments for any disability the child may have.

The extent to which a party can seek an interest in their former partner's or jointly-owned property is highly fact-specific and will depend, amongst other things, on the parties' intentions at the outset and respective financial contributions.  Again, we can advise you on the best approach.

Precautions all cohabitees should take during a relationship

In order to avoid any unpleasant surprises on the breakdown of your relationship, it is sensible to instruct solicitors to prepare a declaration of trust in relation to property owned, and/or a more general cohabitation agreement. These would set out each party's rights and responsibilities in relation to the property where they live or intend to live together, financial arrangements between them (both during and, if applicable, following cohabitation), and arrangements for any children and the arrangements to be made if they decide that they no longer want to live together.  Such instruments are not always enforceable, but, if properly prepared, they can (at the very least) be highly persuasive in court proceedings. More importantly, by aiming to establish certainty, they can assist in preventing or limiting any disputes on the breakdown of the relationship.

You should also make sure that you have up-to-date wills at all times that properly reflect your wishes.  Finally, you should consider having an adequate life insurance policy in place to provide for your partner in the event that you predecease them.

The future

Calls for the reform of cohabitation rights are not new.  In 2007 the Law Commission published a report in 2007 setting out a number of proposals for reform.  These were rejected by the Cameron government.   In 2022, reform was again proposed by the Women and Equalities Committee.  Their report was also rejected by the government, which stated that existing work on the law of marriage and divorce must be concluded first.  Caroline Nokes MP, Chair of the Women and Equalities Committee, expressed her views on the decision:-

“It is deeply disappointing that the Government has closed off the possibility of better legal protections for cohabiting partners for the foreseeable future.  In doing so it relies on flawed logic. Weddings law and financial provision on divorce are wholly separate areas of family law. There is no reason the Government should not prioritise law reform for cohabiting partners alongside this. Moreover, changes to weddings and divorce law could take many years. This response effectively kicks the issue into the long grass and risks leaving a growing number of cohabitants financially vulnerable...”

Given the sharp increase in the number of cohabiting couples, one would expect the government to be giving this matter more urgent attention.  In the meantime, cohabitees are encouraged to take pre-emptive steps to avoid the potential for messy disputes.

If you require advice and/or representation in respect of a divorce or separation contact our specialist family law solicitors by sending us an email, completing our online enquiry form or calling on 020 3811 2782