Common law marriage: fact or fiction?

We see a lot of clients who have been living together, have children together and may or may not own property together, who believe that they have rights because of the myth of the common law spouse.

All of the solicitors in our family team are members of Resolution. Resolution is a group of lawyers who agree to undertake a way of working that is more conciliatory and better for our clients. Resolution have researched cohabitation levels in the UK and found:-

•    1:5 couples in the UK are not married, they are also the fastest growing family unit
•    There are 3.6 million cohabitating families
•    46% of those cohabitating couples still believe there is some protection by way of common law marriage.

That is still nearly half of such couples and it may be that only one of them believes this and the other is fully aware that that isn’t the case. If the relationship comes to an end it causes confusion and shock at an already emotional and stressful time. We are usually the people delivering the bad news that common law marriage doesn’t exist and that they don’t have the protections they thought they had.

What can cohabiting couples do to protect themselves?

So the million dollar question is what can you do to protect yourself if you’re entering into a relationship or are in relationship and there are no plans to marry. The most important thing is to consider how you will own property, if the title has to go in one party’s name but the intention is that it is jointly owned, that needs to be recorded elsewhere, for example in a declaration of trust. It means everyone is clear as to where they stand and what the contributions are.

If you make a larger contribution during the relationship, by paying off some of the mortgage or paying all the monthly mortgage contributions, do you want to protect those contributions or are you happy for the benefit to be split equally, if you own the property equally, if you separate?

How can a cohabitation agreement help?

Who will pay for what during the relationship? A cohabitation agreement will set out who pays for what and what the intentions are as a result. It avoids misunderstandings in the future.

If one party gives up work to care for the children, do they realise they won’t be entitled to the equivalent of spousal maintenance and could be disadvantaged if the relationship ends?

If one party relies on the pension of the other in old age and the relationship comes to an end, do they realise that they won’t be entitled to any of that pension if the relationship ends?

If your contributions to the purchase or the upkeep of a property aren’t recording in writing, it’s very hard to prove if there is a dispute.

If you have children you may be able to make claims for capital provision on behalf of the children, but it can be provided as a loan which reverts to the other party when the children reach adulthood.

These are all difficult conversations and considerations when you are starting out in a relationship or putting finances into a relationship but if you don’t have them the conversations and arguments that result can be much harder.

We are hoping for a change to the law sooner rather than later, but it is long awaited. In the meantime if you have concerns and want to discuss any of the above, don’t hesitate to contact us.