The Myth of Common Law Marriage

Posted by Laura Sinclair

Solicitor

Cohabiting couples are the fastest growing family type in the UK, with more than 6 million people living in these sort of relationships, representing 17% of all families.

Despite the myth of ‘common law marriage’, under current cohabitation law it is possible to live with someone for decades and even to have children together and then simply walk away without taking any responsibility for a former partner if the relationship breaks down.

Many of those living together unmarried are unaware of their lack of rights and, if the relationship breaks down, surprised they are not legally protected.  This can have a huge impact on women and children, particularly in cases whether a mother has given up or reduced her work to raise a family.

In 2007, the Law Commission recommended affording rights to cohabiting couples yet the situation remains unchanged.  Numbers of cohabiting couples are projected to continue to rise, making it imperative to resolve this issue.

Resolution campaign

Resolution, the family justice organisation I belong to, are currently campaigning to raise awareness to the public and politicians of the lack of legal protection upon separation for cohabiting couples.

From 27 November to 1 December, members of the organisation are promoting ‘Cohabitation Awareness Week’ by speaking to MPs, making press releases and getting involved on social media.

Resolution calls for a legal framework of rights and responsibilities when unmarried couples who live together split up, to provide some legal protection and secure fair outcomes at the time of a couple’s separation or on the death of one partner. Other countries, such as Australia and Canada, and closer to home Scotland, recognise these relationships and provide legal protection. In our view, the current laws are behind the times and it is necessary for them to change.

Proposals

Resolution proposes that cohabitants meeting eligibility criteria indicating a committed relationship would have a right to apply for certain financial orders if they separate. This right would be automatic unless the couple chooses to ‘opt out’.

The Court would be able to make the same types of order as they do currently on divorce, but on a very different and more limited basis. Awards might include, for example, payments for child care costs to enable a primary carer parent to work.

Opposition

Arguments against reforming the law relating to cohabitation include statements that unmarried couples living together have chosen to avoid the married state and there is nothing to stop them marrying, when divorce is easily enough obtained.

And, that if they are dismissive of marriage as a mere piece of paper, or an unnecessary legal bond, then why so keen to turn to the Court for compensation in reliance on the law when the free union ends?

Until the law is updated, it is crucial to help the many unmarried cohabiting couples better protect themselves in the event that the unfortunate breakdown of relationship occurs.

What you can do and how you can protect yourself?

  • Know your rights and seek legal advice – by talking to a solicitor and taking precautions early on, a couple can avoid acrimonious disputes and potentially costly Court battles further down the line
  • Document your intentions from the start – as cohabiting couples are not legally obliged to support each other financially, put yourself in a place of security regarding finances and property by drawing up a Cohabitation Agreement with your partner
  • Consider taking out life insurance and making a Will – unlike a married partner, if one cohabiting partner dies without leaving a Will the surviving partner will not automatically inherit anything, unless the couple jointly own property
  • Spread the word – inform people you know who are in this situation so they can protect themselves

To raise awareness, Resolution have produced a basic factsheet providing initial information on what cohabiting couples should consider. Please download a copy here which I hope is helpful.

For any further information, please contact Laura Sinclair on 01227 763939.


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