I’ve had a number of clients approach me asking what rights they have upon the end of their common-law marriage.

My face falls and I ask for clarification.

Can they send me the marriage certificate? No, they explain, they have a “common law” marriage; they’ve been living together for 20 years, have three children. Therefore, this has automatically created a common-law marriage for them.

No, this is entirely wrong.

The only way to create a legal marriage is to get married. If you aren’t married, you are a cohabiting couple.

Cohabiting Couples

Cohabiting couple families are the fastest-growing family type in the UK.

The number of cohabiting couple families doubled from 1.5 million families in 1996 to 3.3 million in 2017.

As a family lawyer, I do have some concerns about these figures.

Marriage and civil partnership offer families legal support when a relationship ends.   Statutory protection is available which gives the Court the power to redistribute assets in accordance with fairness and each party’s financial needs.

Cohabitants have none of this protection.

For these reasons, I am a big fan of marriage and civil partnership.  As a lawyer, I spend my days dealing with separating couples and the fallout from that and without a doubt it is the married couples who come out of this the best.

I appreciate that a number of people chose not to get married and that is fine, just as long as that is an informed decision, that they are not under the misconception that they have somehow created a “common law marriage”.

Legal Remedies for Cohabiting Couples

So, what happens when the relationship breaks down for a cohabiting couple?

Whilst they will not have the same benefits from statutory protections as divorcing couples, there is some legal protection.  In my view, it is messy, complicated and desperately in need of an overhaul.

For example, if the family home has been purchased in your partner’s name and you do not have a legal share in the ownership you may be able to make an application under the Trusts of Land and Appointments of Trustees Act 1996, the burden will be on you (typically the less well of party) to establish that there was a “common intention” that you should have a beneficial interest in the property and that you relied upon that common intention to your prejudice.

The law in this area is complex and it can be expensive to pursue a claim.

If you have children, you will have slightly more protection as the carer of the children can make an application to the Child Maintenance Service for child maintenance.

This maintenance however is only for the children and will not provide for you as a carer.  You may be able to make an application to the court under Schedule 1 of the Children Act 1989 to stay I the family home and receive periodic payments for the child including a “carer’s allowance” depending on the wealth of your partner.

Any arguments over money may fall under a contractual dispute and would be dealt with under civil rather than matrimonial law and therefore fairness and need wouldn’t be taken into consideration.

These remedies are more complex and costlier than matrimonial proceedings.  In addition, because they fall under the jurisdiction of the civil courts, you expose yourself to a costs order.  In the family courts the general rule that there will be no order as to costs, whereas this does not apply in civil proceedings.  Therefore, you could go through the entire process, spending lots of money on legal fees and then lose and ultimately have to pay the other party’s legal costs too.  The stakes are, therefore, much higher.

What Should Cohabiting Couples Do?

Whilst it is unromantic, it is important to talk about finances and your relationship.

If you don’t want to get married or enter into a civil partnership you can enter into a cohabitation agreement and that would regulate your finances, setting out who pays for what and what your intentions are.

You should obtain legal advice in relation to preparing this in order that in the event of your separation a court would take it into account.  You should also consider how any property should be owned, whether it should be in both your names or if a declaration of trust should be created setting out what proportion the shares are held.

It is also really important that you have an up to date will.

As a cohabitant, your partner has no rights if you die intestate, that is, without a will.

There is some protection offered under the Inheritance Act (Provision for Family and Dependents) Act 1975, but that is dependent on need and requires an application to the court.  It is much more straightforward if there is a valid will in place which makes clear provision for your partner and children.

You may also wish to consider your pensions and nominate your partner to have an interest in your pension if something were to happen to you so that they would be entitled to that and any death in service benefits.

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