The Myth of Common Law Marriage: Cohabiting Couples

‘Given that cohabiting couples are the fastest growing family type in England, it is surprising that they do not share the same legal rights as others.’

Caroline Nokes, chair of the Women and Equalities Committees. 

A recent inquiry of The Women and Equalities Committee has found that the number of cohabitating partners in England and Wales is rising with over 3.4 million partners currently cohabitating in 2020. This is an increase from 1.5 million in 1996 which makes it a popular family unit in today’s society. 

A misconception that cohabitating couples who live together for a significant period of time have the same rights afforded to them as if they were formally married still exists. For example, the same rights on death and separation that a married couple would enjoy under the law. This misconception is due to the belief that there is ‘common law marriage’ in the UK which is simply not the case. 

Historically, cohabitating couples have not been able to make any claims against one another on separation and on death. The claims they can make are very limited and relate mainly to claims for any interest in jointly owned property and claims brought on behalf of supporting minor children. 
 

The Legal Position 

• Unlike the divorce of a married couple, which is governed by the Matrimonial Causes Act 1973, there is no legal process which applies to the breakdown of the cohabitating partners. 
• There is no right to make any claims against income of either party to a cohabitating couple. For example, if one cohabitant was the economically stronger partner, the other partner would not be able to make any financial claim against their income by way of support on separation. Cohabitating partners have no legal duty to financial provide for or support the other cohabitant. 
• Cohabitating couples are not entitled to make an application to the Family Courts for any claims against each other’s pensions. 
• Non-married couples will not automatically be each other’s next of kin. 
• For any jointly owned property owned during a marriage, the married couple can make claims in the Family Court for financial orders against the property. Any jointly owned property between cohabitants would be dealt with under the Trust of Land and Appointment of Trustees Act 1996 (TOLATA). This would be dealt with in the Civil Courts and not the Family Courts. Applications are for the sale of the property and due to the applications being made in the Civil Courts, there are no considerations given to the economically weaker cohabitant. 
• For any property owned solely in one cohabitant’s name, the other cohabitant would need to rely on Property Law and principles of constructive trusts in order to establish a claim for any property owned solely. That cohabitant would not have the benefit of any home rights that a spouse would be entitled to, in order to remain in the house. Cohabitants do not have an automatic right to remain in the property if the other Cohabitant does not wish them to. 
• Cohabitants can make claims on behalf of minor children under Section 1 of the Children’s Act 1989. 
   

On death 

• If one of the cohabitants passes without a Will under intestacy rules, or does not provide for their partner in their Will, the cohabitant would not automatically be eligible to receive a share of the estate. The surviving cohabitant, having met certain conditions, would have to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. 
• If one of the cohabitants passes with a Will, leaving their estate to the other cohabitant, they would not be entitled to claim spousal exemption to Inheritance tax (IHT). The surviving cohabitant would not be able to use the nil rate band, not used on death of the cohabitant, to lessen their future tax liability. 
   

Has there been a shift?

The discussion surrounding cohabitating couples started with the Law Commission report published in 2007 titled ‘Cohabitation: The Financial Consequences of Relationship Breakdown.’ At the time, the Law Commission did not feel that cohabitants should be afforded the same legal rights as a married couple. Following the publishing of this report, there have been different bills brought before Parliament in 2008 and 2012 trying to increase the protections that cohabitating couples would have. Unfortunately, these bills have been unsuccessful in shifting the rights afforded to cohabitants. 

Now the Women and Equalities Committees have launched an inquiry looking into the legal protections surrounding cohabitation. They are specifically looking into the laws and rights that cohabitants do not have and whether they should share the same rights of married couples. Since cohabitation is on the rise, the Committee is looking at the economic hardship that cohabitants face on death and separation in comparison to married spouses. They are investigating how these rights can be strengthened for cohabitating couples and what legal protections can be afforded to cohabitants. 

This is running along side the Cohabitation Rights Bill 2017-19, first introduced in 2017, which is now currently before parliament in its second reading. This bill would give protections for cohabitating couples who face economic hardship on separation and cohabitating partners on the death of their partner. 

With the Committee now launching an inquiry into cohabitating couples and the current bill before Parliament, there might be hope for cohabitating couples gaining the same rights as married couples or something close. With enough discussion surrounding this topic, the law might bridge the gap between the protections afforded to married couples and the lack of protections for cohabitating couples. 

How can I protect myself?

While the Committee is discussing these points and the bill is being put before parliament, cohabitants still lack the same protections that are given to married couples. There are ways in which cohabitating couples can protect themselves and they need to consider these protections while they cohabitate and accumulate assets together.  

The ways in which cohabitating couples can protect themselves: 

• Cohabitating couple can enter into a cohabitation agreement and/or a Deed of Trust as a way of protecting themselves. The agreement would set out the assets between the cohabitants and can make provisions for any financial issues that would arise on death or separation. 
• If Cohabitants own any property or have any assets which they wish to leave to the other Cohabitant, they should execute a valid Will to protect their partner’s interest on death. 

Do you need some advice?

If you need help with drawing up a cohabitation agreement or would like to know more about our Family Law Services see out webpages.

If you would like to discuss a matter, please feel free to contact a member of our Family Law Department on 01242 574244 and we will be happy to meet you and discuss your situation.

“This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.”