Cohabitation Awareness Week and the Myth of the “Common Law Marriage”

According to the Office for National Statistics latest release on 8 November 2017, there are 3.3 million unmarried couples living together in the UK and this is the fastest growing type of family in the UK.

This week, Resolution – a group of some 6,500 family lawyers committed to the constructive resolution of family disputes and which campaigns for a fairer justice system is shining a light on lack of protection afforded to millions of unmarried couples with Cohabitation Awareness Week.

Sadly, many people still believe in the myth of the “common law marriage” as highlighted by a poll commissioned by Resolution of over 2,000 British adults which found that “ two thirds of people in cohabiting relationships are unaware that there is no such thing as a “common-law marriage” in the UK.

The sad reality is that for unmarried couples, there is no legal provision for property and finances to be divided if the relationship should end as there is when a marriage comes to an end.

In the event that one partner in an unmarried couple dies, the surviving partner has no automatic right to inherit property or possessions. If the deceased has not made a will, the surviving partner is not legally considered the next of kin and does not benefit from the intestacy rules.

Women may be particularly at risk by the lack of protection as they may give up work to care for children. Unlike married couples who on the breakdown of the relationship and divorce may claim maintenance as well as a raft of other Orders from the court such as pension sharing Orders and Orders for the sale and division of property such as the former family home, there is no such provision where a relationship breaks down and the couple are unmarried regardless of how long they may lived together and whether they have children.

If there are children, it is possible to seek financial provision for any children of the relationship by making an application under Schedule 1 of the Children Act 1989 but this could be highly unsatisfactory for a parent who has sacrificed a career to bring up children and find that h/she is not entitled to any financial provision in their own right. For example, if there is sufficient capital, the court can make an Order under Schedule 1 of the Children Act for one parent to provide a home for the other whilst the child(ren) and growing up. However, such an Order will usually come to an end when the child(ren complete full time education and the property then reverts to the parent that owns it.

PROTECTING YOURSELF

If you are unmarried and cohabiting or planning to live together it is sensible to consider the following:

1. Make a Will

his ensures that should anything happen to you, it is clear what you want to happen to any property and possessions. You can specify whether property is to pass to your partner and any children

2. Cohabitation Agreement 

This is also known as a living together agreement. It can be drawn up by a Solicitor and records the financial arrangements between a cohabiting couple as well as arrangements to be made if they decide they no longer wish to live together. It can also deal with arrangements for the children in the event the relationship breaks down.

3. Declaration of Trust

If you are buying property together, a Declaration of Trust sets out how you will own the property and in what shares.

It is important to note that as a cohabiting couple, you have no automatic legal right toany share in property owned by your partner. Therefore, if you are contributing to the mortgage or contributed financially to the property you should ensure that this is reflected in a Deed of Trust to protect yourself. In the absence of this, you may be able to seek a claim to the property under the Trust of Land and Appointment of Trustees Act 1996 which is a complex area of law.

For any other information please feel free to discuss this with our highly trained solicitors or on 020 3667 4780