The myth that is common law marriage
Kerseys Family Department frequently meets clients whose cohabiting relationship has broken down and who believe that there is some protection in law by virtue of “common law marriage”. Unfortunately this is not correct and a recent survey found that two thirds of cohabiting couples wrongly believed that common law marriage exists when dividing up finances.
There has been a rise in unmarried couples which has doubled from 1.5 million in 1996 to 3.3 million today. As the law stands, cohabitation gives no rights to cohabitants on a relationship breakdown. The only rights that a cohabiting couple may have or acquire would be by virtue of jointly owning property or having other assets in joint names, or in certain circumstances by financially contributing to the property or assets owned by the other. If there is no jointly owned property then a non-owning cohabitant may well have acquired no rights in the property they thought of as their home.
On divorce, couples can make claims against one another for maintenance, property, lump sums, pension sharing and can also make claims against the estate of a deceased spouse or former spouse.
Marriage brings automatic rights for financial claims between spouses which are not available to cohabitants no matter how long they have lived together. Unmarried couples have few of these rights and even if some claims against the cohabitant might exist, it can be a much more complicated and expensive Court process to pursue. One of the couple may have been a full-time carer for children unaware that if the relationship ends they are not entitled to maintenance for themselves nor a share of their partner’s pension and possibly no entitlement to a share of the family home if owned solely by the other.
There are calls for changes to the law but no promises as to whether or when they might occur. Cohabitants can make provision for relationship breakdowns with Cohabitation Agreements and Declarations of Trust which can deal with the issue of property ownership. What is important however is that cohabitants enter into relationships with full knowledge of the rights that they may or indeed may not acquire.
It is very important that people inform themselves or take advice when committing to a relationship. It may not seem a romantic thing to do but it can save a great deal of hardship and unhappiness in later years if things go wrong.