The myth of common-law marriage is one that persists year after year.
There are now more than 17.5% of families in the UK where the parents are not married but cohabitating, and with cohabitation rising from 1.5 million couples in 1996 to 3.3 million couples in 2016 (according to figures from the Office of National Statistics), there has never been a greater need to dispel the common-law marriage myth than there is now.
Despite the long-running myth, many cohabitating couples do believe that, if they live together for a certain number of years, they will be afforded the same legal protection as a married couple and that the law will recognise their relationship as a marriage. However, this isn’t true, and cohabitating couples have no automatic entitlement to make a claim on each other’s assets should the relationship end.
In 2017, Resolution conducted a survey among cohabitating couples and found that two thirds of respondents believed common-law marriage exists and would protect them when dividing their finances if the relationship ends. It is worrying that so many people are unaware of just how unprotected they are by the law, and it must be devastating to discover far too late that, as an unmarried partner, you aren’t entitled to claim on your former partner’s pension, property or other assets in their sole name should you separate.
The Current Law in England & Wales for Cohabitating Couples
When an unmarried couple separates, each party retains the assets that are in each of their names – irrespective of whether that is the family home or the family business. To contest this, the party whose interest has been undocumented will have to go through the struggle of establishing that there was a joint intention for them to have an interest using the highly complex Trusts of Land and Appointment of Trustees Act 1996. The starting and usual finishing point is the person(s) named on the deeds is the owner. In some circumstances, it is possible to claim an interest in the property if there was an intention to share the property and beneficial interest can be established. It is also possible for a parent to make claims for the benefit of children under Schedule 1 Children Act 1989 for a capital sum or property transfer. Any provision of capital reverts to the original owner when the child reaches 18 or 21 years of age.
Living Together Agreements
Couples who live together, or intend to live together without getting married, can enter into a Living Together Agreement (sometimes called a cohabitation agreement). The agreement will not be legally binding, unless it is written as a formal legal deed. The Living Together Agreement should set out what happens to the assets and what the financial division will be should the couple separate. It is very important that anyone wishing to have a Living Together Agreement should seek his or her own independent legal advice before signing the agreement.
There have been a number of attempts by parliamentarians in recent years to introduce Private Members Bills, none of which has been successful for a variety of reasons. The latest Private Members Bill, the Cohabitation Rights Bill [HL] 2016-17, was introduced by Lord Marks of Henley-on-Thames, but the Bill was unable to progress due to an early General Election.
With the focus seemingly on “no-fault” divorce, cohabitation reform appears to have taken a back seat of late. The ONS Statistics show us that fewer people are getting married, and more people are choosing to live together; surely, it is only a matter of time before cohabitation rights are back on the political agenda?