K J Smith Solicitors

Rights of Cohabiting Couples and the “Common Law” Marriage Myth

Published: 14 March 2016

One of the most common misconceptions in family law is the idea that cohabiting couples have the same rights as married couples.  In a survey undertaken in 2013 by OneplusOne, a surprising share of respondents (approximately 40%) believed that simply living together without being married gave couples the same rights as married couples. Recognition of "common law" marriages was abolished in England under the Marriage Act 1753.

As the law currently stands, cohabiting couples do not have the same rights as married couples in respect of inheritance, finances or children matters.  It is not unheard of for one of the parties to a relationship to, years down the line, discover that they have no claim on pension, income, savings and potentially even property belonging to the other party that they would have had in the event that they were married.  This can lead individuals to be woefully unprepared for the financial implications of a life outside of their relationship.

The law governing this area is complicated with each case turning on its own facts, merits and the intention of the parties.  The legal framework has been known to cause problems for lawyers and Judges alike, let alone those whose lives are affected.

On 9th February 2016, the government published a briefing paper summarising the current position entitled '"Common law marriage" and cohabitation'. The paper details a report published by The Law Commission in 2007, which recommended the introduction of a financial remedy scheme for cohabitees. Whilst the proposed scheme would not give cohabitants the same rights as married couples, consideration would be given to the contributions of "qualifying" couples.  The recommendations have not been implemented.

When thinking about whether to cohabit, careful consideration needs to be given to who pays what, both in respect of purchasing the property and on a day-to-day basis, and who would get what in the event the relationship ended.  The best way to do this would be by way of a cohabitation agreement which can set out each party’s interest in assets as well as regulate the day-to-day expectations.  These agreements are not legally binding but, adhering to certain principles when prepared, they are given consideration and weight by the Court.

It is a regular occurrence for those practicing family law to hear a client comment that a cohabitation agreement is unromantic and shows a lack of trust or that it is expensive to take legal advice when considering taking their relationship to the next stage, be it cohabitation, having children or getting married.Solicitors are often only instructed when things go wrong and the legal costs to rectify an issue exceed the costs of pre-emptive action.

If your relationship is on the verge of a breakdown and you are thinking about divorce then K J Smith Solicitors are here to assist. Our team of family law experts and trained mediators are here to help you understand the options available to you and the best course of action to take, with the aim of resolving your matter in the most amicable way possible.

For more information, or to arrange a free 45 minute consultation with a member of our team, please contact K J Smith Solicitors today on 01491 630000 (Henley on Thames), 020 7070 0330 (London), 0118 418 1000 (Reading), 01753 325000 (Windsor), 01256 584000 (Basingstoke) or 01483 370100 (Guildford).

This article was written by Jennifer Murray.

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