Does ‘Common Law Marriage’ actually exist?

The number of cohabiting couples has doubled over the last twenty years and a popular misconception that seems to lose none of its force is that of ‘common law marriage’. If only such an institution really did exist. I’ve lost count of the number of people I’ve had to break the sad news to that it doesn’t. The fact remains that married couples and civil partners have rights that cohabitees can only dream of.

A recent Parliamentary review, ‘Common Law Marriage and Cohabitation’ (Briefing Paper no. 03372, 9 February 2016) has helpfully looked at all the issues and let’s hope one day Parliament will provide a modicum of protection to cohabitees in England and Wales (cohabitees in Scotland and Northern Ireland already have some rights although not as extensive as those of married couples and civil partners). But, in the meantime, what are the risks?

    The cohabitation minefield

To put it in perspective let’s see how the law protects married couples or civil partners. If they split up, or if one of them dies without making a Will, there is legal machinery in place for dealing with any difficult questions that arise. If you are a cohabitee and your relationship ends or your partner dies you can, literally, find yourself out in the cold.

Why is that? I will give you an example. Imagine a married couple or civil partners living in their shared home. If they divorce all their matrimonial assets, including their shared home, are truly up for grabs. The starting place for division is a fifty/fifty split but certain circumstances are taken into consideration, such as the needs of any children. So the idea is to get a fair outcome regardless of who owns what on paper.

    Cohabitees can end up with nothing

But if cohabitees split up, what happens to their shared home if it is in only one of the cohabitees’ names? The answer is that the other cohabitee has no legal right to a share in the net proceeds. But what if it was always understood to be their joint home, or what if the non-owning cohabitee sunk a lot of money into the purchase of the property or its improvement? Unless they can negotiate a share by, for example, turning to mediation or collaborative law, or they are successful in a complicated and expensive application to the court, the non-owning cohabitee could come away with nothing.

    What happens to the children if cohabitees separate?

 At least the law is fair when it comes to the children of cohabitees. The court procedures and the law are exactly the same when it comes to the emotive and important issues of where the children are going to live and who they are going to see. And of course it’s better to try and reach an agreement yourselves or to try mediation or collaborative law rather than to go to court.

And the Child Maintenance Service (the Child Support Agency) is there to help if the absent parent isn’t paying up, regardless of whether the parents are married or not.

There are special provisions under Schedule 1 of the Children Act for parents to apply to the court for a range of orders for maintenance, lump sum and property orders where there are children to be supported. These provisions are complicated and you would really need to obtain legal advice about them.

    The importance of making a Will

What happens if a cohabitee dies? Hopefully there is a Will, and it provides a fair share of the deceased’s estate to the survivor. But what if there is no Will? If there is no Will the deceased’s estate is divided under the intestacy rules none of which mention a surviving cohabitee. In other words the surviving cohabitee can come away with nothing in which case another complicated and expensive application to the court is required.

    Are you entitled to benefit under your cohabitee’s pension?

Finally, if you live together make sure you know your entitlement to your partner’s pension. A surviving cohabitee might be entitled to benefits under a late partner’s pension scheme but it is not guaranteed.

    Is a Cohabitation Agreement the answer?

It’s always a good idea to have a cohabitation agreement because at the very least this will help you focus on all the issues. But such an agreement isn’t binding in court proceedings and this is particularly the case if there is a change in circumstances such as the arrival of children. So please make sure you regularly review your cohabitation agreement with your solicitor.

    In at nutshell:

There is no such thing as common law marriage

• Ownership of your shared home can be a legal minefield
• Update your Wills regularly
• Children of separating cohabitees are treated almost the same but there are significant differences
• Would you be entitled to your late partner’s pension?
• Consider getting a cohabitation agreement and regularly updating it.

Link to ‘Common Law Marriage and Cohabitation’ (Briefing Paper no. 03372, 9 February 2016)

Do you think that there should be more protection for cohabiting couples? We would love to hear from you with your opinion so please leave us a comment.

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