The Myth of Common Law Marriage
Rise in cohabitees and the myth of common law marriage
According to figures recently published by the Office of National Statistics (ONS), the number of cohabiting couples living in the UK has more than doubled over the past 20 years, reaching in excess of 3 million. Many of these couples purchase a property together, start a family and live together as if they were married. But, contrary to popular belief in the ‘myth of common law marriage’, unmarried cohabiting couples do not automatically acquire the legal rights afforded to husband and wife, even after many years of living together. So if the relationship comes to an end, the potential fallout can come as quite a shock.
Commenting on the findings, Nigel Shepherd, Resolution Chair, said “These ONS figures are further proof that more and more couples are choosing to live together and bring up their children without marrying. Sadly, some of those relationships will come to an end at some point. This is a feature of our modern society that is here to stay and unfortunately current cohabitation law is failing to provide them with the rights some of them mistakenly think they have.”
How can cohabitees protect their interests?
If married couples get divorced, they can legally claim a proportion of each other’s assets such as property and pensions. But when cohabiting couples split up, they do not share similar rights; if one partner was reliant on the other, they can be left destitute. However, short of getting married, cohabiting couples can plan for the future in various ways:
Joint tenancy or ownership
Ensuring that both names are on a tenancy agreement can provide more protection for both parties, minimising the risk that they will be left without a home following a break up. Similarly, a declaration of trust will record equity shares if you are purchasing a property together. Obviously, alternative long term living arrangements will normally still need to be made in the event of a relationship coming to an end - but putting these measures in place can afford some breathing space and avoid the need for emergency accommodation.
Without a will, the distribution of your estate (all of your assets including property) will be determined by the “intestacy rules” - a strict set of rather old fashioned rules which govern who is entitled to the proceeds of the estate of the deceased. Cohabiting partners who were not married or in a civil partnership are often not entitled to inherit anything under the rules of intestacy. As such, it’s particularly crucial that you both have a legally valid will if you are in a partnership which has not been officially recognised through marriage or civil partnership.
If you’re moving in with someone without getting married, a cohabitation agreement - also sometimes known as a ‘no-nup’ - will set out all the financial arrangements to avoid misunderstandings in the event of a breakdown of the relationship. This agreement specifies existing individual assets prior to cohabitation and clarifies how newly acquired shared assets (or debts) intend to be split up in the event of a breakdown of the relationship. Although a cohabitation agreement is not necessarily legally enforceable, it can serve as evidence of intentions in court proceedings.
If you would like to find out more about protecting your interests as a cohabitee, or need advice on any of the issues discussed above, get in touch with the Family law and Private Client teams at W H Matthews & Co today.