Cohabiting Couples Are Not Protected by Common Law Marriage Laws

29 November 2017

The financial risk of unmarried couples living together, called “cohabiting”, has been hitting the headlines this week. A recent survey conducted by the family law group, Resolution, has revealed some alarming statistics, highlighting the risks that many cohabiting couples could be facing without realising it.

Baroness Hale, president of the Supreme Court (which is the highest Court in the UK) has been campaigning for greater legal protection to be granted to cohabiting couples, and with very good reason.

There has been a sharp increase in the number of unmarried couples living together in the UK in recent years, with the figure currently standing at a colossal 3.3 million. Cohabitation is now the fastest growing family type in the UK as more and more couples choose not to marry, and pressure is mounting for changes in the law to be made to reflect this shift in society.

In the survey conducted by Resolution, four out of five cohabitants agreed that the legal rights of cohabiting couples are unclear. 84% of the public also agreed that the government should take steps to educate cohabiting couples on the truth; that is that they don’t have the same legal protection as married couples.

Common Law Marriage is a Myth

There is a prevalent myth in the UK that cohabiting couples are in a “common law marriage” and that this status will offer them legal protection should things take a turn for the worse. But contrary to popular belief, there is no such thing as a common law marriage in the UK. Worryingly, two thirds of the cohabiting couples that Resolution spoke to were unaware of this. In the eyes of the law, cohabiting couples are not recognised as anything other than two people living under the same roof.

Baroness Hale has spoken out, expressing her view that the current system is unjust. She feels current laws are “bound to leave some people not receiving a fair and just allocation of resources when the relationship breaks up”.

To put the risks into perspective, I’ve put together an example of how the law would offer different protection to a married couple who are separating compared with a cohabiting couple in the same situation:

Take Mary and John, a couple in their late 40s. They have been together for 20 years, have 2 children together and have lived in the family home for 15 years. The house is owned in John’s sole name, but Mary and John have contributed equally to the household costs throughout their 15 years there.

Mary and John decide to separate.

If Mary and John are married, then divorce law would dictate how the family home and other assets should be divided between the couple. Even though the house is owned in John’s sole name, Mary’s equal contributions towards household costs over 15 years are acknowledged and Mary is awarded 50% of the value of the home.

If Mary and John are not married, then the level of protection offered by the law would be much lower. Even though Mary has been making equal contributions to the home for 15 years, she is unlikely to be awarded a share of the home that is reflective of this. She may be able to negotiate a percentage in recognition of her contribution to the household, but it’s likely that John will remain entitled to the vast majority.

Protect Yourselves with a Cohabitation Agreement

Couples can protect their interests with a Cohabitation Agreement. This would help to outline the financial aspects of your relationship and make arrangements for how your finances would be divided if you were to separate in the future.

As pressure mounts for a reform to the laws around cohabitation, we hope that heightened legal protection for cohabiting couples is on the horizon. In the meantime, it’s important for you and your partner to educate yourself on your legal rights and put measures in place to protect yourselves if needed.

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