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Rebutting the Myth of a Common Law Marriage

26 January 2016

Figures from the Office for National Statistics show there are 3.2 million cohabitating couple families in the UK (November 2015). This is a 29.7% increase since 2005.

Cohabiting couples have little legal protection when they separate; ownership of assets is decided by property law principles, rather than principles applied by the family courts for those divorcing. For married couples the court recognises a number of factors, including, most specifically, the needs of a financially weaker party who has given up work to raise a family.

Conversely, when cohabiting couples separate the court has no discretion to make property adjustment orders. If a property is solely in one party’s name, then the other party could potentially walk away without anything unless there has been:

  1. a financial contribution from the non-legal owner or some other common intention that the non-legal owner should gain an interest in the property; and
  2. evidence they relied on this to their detriment, for example contributing to household bills on the basis they did not have to worry about their living arrangements (which can be difficult to prove).

If there are children from the relationship child maintenance will be payable, but there is no entitlement to spousal maintenance. Although, in cases where one party has wealth over and above reasonable needs, it is possible to bring an application under the Children Act for provision specifically for the child. This could result in an order for the other party to provide housing until the child is 18, however for average income families this is rarely a viable case to run.

One way to try and prevent legal wranglings on separation is to have a cohabitation agreement drawn up. These allow the couple to regulate ownership of property and avoid any potential issues should they later separate. The Cohabitation Rights Bill is in its early stages of passing through Parliament and seeks to address the rights of cohabiting couples.

Of course, cohabitation is not a new family type. Whilst it was not a socially accepted practice years ago, figures suggest the growing acceptance of cohabitation is perhaps having the long term effect of strengthening marriage for parties who go on to tie the knot. Divorce rates are currently at the lowest level for 40 years, although this may also be because there are simply less marriages.

*Family type in the UK. Figures from the Office for National Statistics show there are 3.2 million cohabiting couple families in the UK (November 2015). This is a 29.7% increase since 2005.

Charlotte Plowman & Joanna Farrands
Family Team