The Myth of the Common Law Marriage

It is perhaps the most persistent of all myths and is widely believed to be fact by an astonishing number of people. It almost trips off the tongue too easily, “But you’re surely a common law wife after 20 years of living together…” The simple and sometimes the often hard answer is, “No”.

The persistence of this belief is astonishingly worrying, especially when set alongside the facts in terms of the rise in cohabitation. In times gone by, and even as recent as 50 years ago, cohabitation was uncommon but as society changes, instances of cohabitation are increasing year on year,  rising from 1.5 million in 1996 to 3.3 million in 2017.  Cohabiting couples are the fastest growing family type in the UK.

Resolution, the national organisation of family lawyers carried out a survey in 2017, which found that two-thirds of cohabiting couples were under the misconception that common law marriage does exist. This misconception isn’t decreasing with the rise in cohabitation however and in 2019 the National Centre for Social Research published findings that show that 46% of those surveyed believed in the existence of the common law marriage and with that all the legal rights that stem from marriage.  It is therefore extremely important that cohabitees are aware of their rights or lack of in the event of a separation and that they take steps to protect their interests in the course if their relationship.

The fact is that no matter how long a couple has been together, cohabiting couples do not have the same rights as married couples in the event of separation. Legislation is sadly failing to keep pace with the changes that we are seeing in society and the choices that we are making in terms of how we conduct our relationships.  For example, on separation, cohabiting couples do not have the rights conferred on divorcing spouses under the Matrimonial Causes Act 1973 in relation to redistribution of capital and income or pension sharing. In fact, there is no right to any maintenance from your ex-cohabitee for your benefit at all, even if you have children together. Although, there is scope for maintenance for the children under the Child Maintenance Service and further provision under Schedule 1 of The Children Act 1989.

The position in relation to property is slightly more complicated and is dealt with under land and trust law, specifically the Trust of Land and Appointment of Trustee Act 1996. This legislation is certainly not aimed at family units and is very limited in its powers. If your name is not on the property but you have contributed to the acquisition, mortgage or improvement of the property and wish to establish a beneficial entitlement, then you will have the onus of the burden of proof to persuade the court. This can be an uphill struggle and will only succeed in certain circumstances. Conversely, you may wish to persuade the court that whilst the property is held as joint tenants, and therefore the presumption is that the legal and beneficial entitlement is 50 v 50, that there should be an adjustment as a result of your contributions and a change in the common intention as a result of that. Again, this is not an easy argument and you will need to ensure that you have expert advice as early as possible.  In addition, costs follow the event in such applications and so unless you are certain that you have a strong case you should proceed with absolute caution.

What can you do to protect your assets?

It may well be the case that the law in respect of cohabiting couples suits your perfectly/. You may be very clear that you do not want the financial benefits associated with marriage to be available to your partner if you do separate. However, either way, when you are purchasing property with your partner be very clear and careful to record in writing, preferably in a Declaration of Trust, what shares you have in the property and what you are each expected to pay in terms of mortgage contributions and so on. You may wish to be even more “belt and braces” and enter into a cohabitation agreement. These agreements can cover anything from property ownership, to who pays the gas bill and what happens in relation to seeing the children if you do split up. Make sure that you review these agreements in the event of any life changing events such as children, one of you carrying out or paying for substantial improvements or such like. The more evidence you have as to your common intentions during the relationship, the easier it will be to prove your case should the relationship break down.

And of course always make a will. This can be the most devastating impact of all the issues stemming from the myth of the common law marriage. If your partner dies their share in your home will not automatically pass to you, unless you own the property as beneficial joint tenants, but will instead be distributed in accordance with the intestacy rules, which make no provision for the unmarried partner.

If you are impacted by any of the issues highlighted in this blog or would like advice on family matters, click here to speak to a member of BLM’s family law team.

Grainne Fahy

Grainne Fahy, partner and head of family law for London and South East

 

 

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