Family Law Myths: the common law marriage

29th November 2023

Family lawyers often advise clients who have been in a cohabiting relationship which has broken down but who have never married. In a 2022 Women and Equalities Committee report, almost half (46%) of the population in England and Wales wrongly believed that couples who lived together form a “common law marriage”. Worryingly, in households with children 55% of those households believe that common law marriage exists.

Does common law marriage exist?

Although the rights of cohabiting couples have been at the forefront of discussion over the last 15 years or so within family law communities and the topic of potential legislative reform, cohabitants do not yet have a reformed system whereby there is greater protection afforded to them.

If your relationship breaks down and you are not married, you do not acquire legal rights to:

  • 1. Income (maintenance) for yourself
  • 2. Pensions
  • 3. Savings and investments unless you have a beneficial interest, such as being a joint account holder
  • 4. Property by virtue of being in a relationship, again unless you have acquired beneficial interest. You do not simply have the right to a share of property in itself by having been in the relationship.

There is no presumption of fairness or a 50/50 starting point to divide assets either.

That is not to say that a cohabiting couple will not have any rights to potential financial claim themselves or for any minor children, either by way of Child Maintenance Service or for a financial provision for children under Schedule 1 of the Children Act 1989. Partners will also have potential to make claims under the Trusts of Land and Appointment of Trustees Act 1996, if they are able to demonstrate that they meet the requirements.

However, the division of finances will be limited to property ownership and financial support for children and will not mirror the sort of financial provision that is available to married couples. There is no regard to the length of the relationship, discretionary factors such as the needs of the parties now and in the future, as well as the standard of living that the parties have enjoyed.

Claims in relation to the family home, for example, will depend on how the legal title has been recorded, failing that whether any benefit was acquired under a declaration of trust or deed of cohabitation, with more complicated territory to navigate if these situations are not applicable and instead a constructive trust needs to be established. This is where a partner has to demonstrate that they had a common intention as a couple and that they relied upon that to their detriment.

What can couples do?

Whilst couples cannot change the legal landscape, they can mitigate against the risk of uncertainty in their own personal circumstances. Having discussions at the outset of a relationship when it is going well and couples wish to purchase a property together is always advisable. Couples should consider how that property will be owned, who will benefit from it and what will happen if the relationship were to break down. If contributions are being made to the property, are these equal or unequal and should it be reflected in the beneficial ownership?

Couples should think about the benefits of having a declaration of trust or in addition to this, a cohabitation agreement whereby more bespoke and thorough provision can be provided to stipulate what will happen in the event of a relationship breakdown. This would be particularly useful where there are children’s needs to consider, such as when the family home will be sold, who shall be responsible for payments such as school fees, what provision and maintenance should be provided for children, and crucially the provision of assets and what that would specifically entail once the children are fully grown if it is not possible or it is not agreed that the finances would be divided sooner. It would even be possible to be more generous in a cohabitation agreement, than the law currently allows.

This is very much an opt in process though as both parties would need to agree to enter into an agreement, both would need different legal advice and it would need to be properly executed and clear. It would also be strongly recommended to update an agreement by having a pre-nuptial agreement instead in some circumstances, if the couple were ever to decide to marry in due course.

Whilst common law marriage remains a myth, it is increasingly important that parties are aware of their legal status as cohabitants and the limited support available to them, so that they can make an informed decision as to whether or not this reflects a level of protection that they are comfortable with and a degree of limited financial relationship, or whether alternatively they wish to have clear bespoke arrangements as to how they should divide their finances and support any children that they may have together. Like with many aspects of family law, each case is specific as to its own facts and so if in doubt as to their position under the current state of the law and how this impacts upon them, couples should always take their own independent legal advice from family lawyers.

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