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Family Law

The Myth of the “Common Law Marriage”

The fastest-growing type of family in the UK are people who are living together without being married.  The Office for National Statistics (ONS) figures show the number of people who cohabit has doubled to 5.9 million since 1996.  This is compared to 20.1 million married couples in the same year.

A survey of unmarried couples revealed that their reasons for living together are:-

  • To live together as a couple – 36%
  • To test the strength of a relationship before marriage – 24%
  • No desire to get married – 20%
  • To reduce living costs – 19%
  • Unable to afford to get married – 13%
  • To have children – 8%
  • To move out of the family home – 8%

The British Social Attitudes Survey 2000 showed that 59% of cohabitees mistakenly thought there was some form of common law marriage that gave them rights similar to those enjoyed by husbands and wives.  The phrase ‘common law husband/wife’ is frequently used but common law marriage has not existed in England and Wales since 1753.

If you are living with someone without being married, no matter how long you have been living as husband and wife, you might think you have similar rights to married couples if the relationship breaks down or one of you dies.  You would be wrong.  Cohabitants have very few rights that arise out of the relationship.  You cannot for example, claim maintenance from a cohabitant or former cohabitant for your benefit.

As a result, the breakdown of a relationship can be a financial disaster for a dependent cohabitee.  The children of such a relationship may be left at a financial disadvantage.  This can lead to a complex and often costly legal dispute when a couple split up.

As the law stands, the only solution for cohabiting couples who want legal protection should they split is either marry or to draw up a cohabitation agreement, otherwise known as a living together agreement or “no nup”.  It is no surprise therefore that the number of couples signing cohabitation agreements before moving in with one another has risen sharply in recent years.

Such Agreements set out what you would both want to happen in the event of your separation and can cover all sorts of aspects of a relationship not just contribution to property.  Other areas of potential conflict for example could be who pays the mortgage, bills and how other financial obligations are divided.  The Agreement can also make provision for what happens in the event of the death of one or the other of the parties.

It is sitting that this issue is debated in Scotland, where of course unmarried couples who live together already have legal rights upon separation.  It may be time for the rest of the UK to catch up and bring the law in step with how millions of people are choosing to live their lives.

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