Contact one of our advisors now Call 0800 088 6004

Common Law Marriage

Reasons to choose Wilson Browne

Initial findings from this year’s British Social Attitudes Survey – carried out by The National Centre for Social Research – revealed….

….nearly half the adult population questioned incorrectly thought that cohabiting partners get similar rights to married couples under a common law marriage.

According to the Office for National Statistics, cohabiting couples are the fastest growing type of family in the UK, with 3.3 million families described as cohabitants rather than married as of 2016.

But what is the definition of a cohabiting couple? The Child Support Act 1991 describes cohabitees as two people who are not married to, or civil partners of, each other but are living together as a married couple.

In England and Wales cohabitees have very few automatic rights. As the law stands, if a relationship breaks down, it is not possible to make a claim for financial provision, regardless of the financial circumstances of each party. It should be noted that in certain circumstances, provision can be made under Schedule 1 of the Children Act in limited circumstances. Contrastingly, a separating married couple would have the protection of the court’s starting point of equal division. Another main point of contention is that a cohabitee will not benefit if the other dies without making a will, whereas a surviving husband or wife would be provided for under the intestacy rules.

Often, where a cohabiting couple’s relationship breaks down, there is a dispute over who owns what share the home they lived in during the relationship. Court proceedings in these circumstances are complex and parties face significant cost consequences if they fail to comply with directions. If there have been unequal contributions or if one party is not a registered owner, the intentions of the parties at the outset of their cohabitation can be difficult to ascertain.

There are certain steps cohabitees can take in order to protect their financial position.

  1. Make a will.
  2. Have a declaration of trust drafted which clearly states how a property is to be held.
  3. Have a cohabitation contract drafted.

There is currently a private members Bill going through the House of Lords which would provide cohabitees with rights similar to those of a married couple where the following conditions are met:

  1. They live together as a couple, and
  2. that any of the following apply (where the couple are A and B):
  • A and B are each treated in law as being mother, father or parent of the same minor child;
  • A joint residence order in favour of A and B is in force in respect of a minor child;
  • A and B are the natural parents of a child en ventre sa mere at the date when A and B cease to live together as a couple (whether or not that child is subsequently born alive), or
  • A and B have lived together as a couple for a continuous period of three years or more.

It remains to be seen what the outcome of the Bill’s journey through the House of Lords will be but for now, cohabiting couples remain in a situation where their rights are extremely limited.

If you are a cohabitee or you are about to commence cohabitation with your partner and you have any questions in relation to the above, get in touch and either myself or one of my colleagues in the team here at Wilson Browne will be happy to assist you.