Family Law Myth 2 – Let’s be clear - Cohabiting couples do not have same rights as married couples

When you hear something enough times, it is difficult to believe it is not true.

This is what has happened with the term “common law wife”. To be gender equal we should of course be saying “common law spouse” but in this case it is almost always the female of the species who is duped by terminology that trips off the tongue, and believes that after a certain amount of time of cohabitation (7 years is often the mystical number) you can be termed a “common law wife” and have the same legal rights as a married woman.

Let us be clear – “common law spouse” is not a legal status; it is simply a social label for people who have lived together for a reasonably long time.

In fairness, common-law marriage did exist in England but has not done so since the 16th century and if there was any lingering doubt, it was confirmed as unlawful by the Marriage Act of 1753. A quarter of a millennium later, it would appear that we still believe in stories with a poll in 2006 confirming that 50% of the general population had not got the message that common law marriage does not exist.

This is worrying when you consider the sharp increase in the number of unmarried couples living together. Rising from 1.5 million to 3.3 million in the years between 1996 and 2016, cohabiting couples now account for 17.5% of families in the UK.

What makes an individual believe in the myth of the common-law status? Some might say blind optimism of the “I trust my partner” and “why look too deeply as to something which won’t hopefully happen.” Others find the concept, certainly at the beginning of a relationship, highly unromantic and after many years of living together, fear that any voiced concerns may seem needy or even greedy and in danger of putting stress on the relationship.

Of course you can live together and have legal rights but they are not automatically applied because of a couple’s cohabiting status but as a direct result of those involved seeking legal advice as to how to own assets in common and have in place a mechanism for protecting their respective shares in the event of a break-up. But to be fair to the myth believers, there is even a higher percentage of the population, (estimated more than 75%), who are unaware that legally binding cohabitation agreements exist and the reality is that very few couples living together actually have an agreement, which can provide certainty on money and property division upon the breakdown of a relationship. There is the related assumption that at the very least, if couples buy or own property together that in the event of a break-up there will be “fair financial remedy” but again, it is all in the detail and cases are often complex, lengthy, and expensive.

Family Law does look after the children of unmarried couples who separate. Schedule 1 the Children Act 1989 permits the parent with care of the child (usually the mother) to claim proper financial support from the other parent (usually the father). Where one parent has significant assets, this can mean substantial property and financial maintenance awards. However, unlike a divorced spouse, at 18 or the end of the child’s university education, the property reverts to the father, and the mother (and child) loses their home.

With cohabiting being the fastest growing family structure in the UK, legal rights are, however, very much on the Family Law agenda. Back in 2007 the Law Commission recommended greater protections for cohabiting couples but proposals were rejected subsequently by the coalition government. In June 2014, Lord Marks brought his Cohabitation Rights Bill to the House of Lords which progressed to a second reading but then no further. This year there has been a further surge of activity with a new Cohabitation Rights Bill but this stalled during the last parliament. This new bill seeks to give cohabiting couples more rights, but as recent history has proved, there is no defined timetable and certainly no guarantee it will become law.

In the meantime, if you are a member of a cohabiting couple with no immediate plans for marriage but sharing the costs of living in terms of property and/or other financial assets, think about taking some legal advice today rather than believing in myths from 500 years ago.


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