A recent survey has revealed common law marriage remains a commonly held myth.
46% of the public believe that cohabiting couples form a common law marriage, according to the British Social Attitudes Survey 2019, conducted by The National Centre for Social Research. This figure increases to 55% among those with children, whereas 41% of households without any children believe there is a common law marriage.
In fact, the concept of a common law marriage does not exist anywhere under law in England and Wales. Cohabiting couples do not benefit from the same rights as married couples or civil partners, irrespective of how long they have been in relationship or cohabited for.
With the number of cohabiting couples in the UK continuing to grow, doubling from 1.5 million families in 1996 to 3.3 million in 2017, in effect an increasing proportion of the population is at risk of having little recourse to legal protection if their relationship breaks down or if their partner dies.
Debunking the common law marriage myth
In the event of relationship breakdown, while divorcing couples and civil partners will follow a formal legal process to, for example, redistribute assets in light of party needs, unmarried and cohabiting couples are afforded no such legal protection and rights.
For example, disputed property ownership is likely to be dealt with under Trusts of Land and Appointments of Trustees Act 1996. Disagreements over money are likely to be dealt with as contractual disputes by the civil, not matrimonial, courts which exposes parties to cost orders.
Seeking legal protection is more costly and protracted for unmarried couples than divorce proceedings.
On death, a surviving spouse or civil partner will ordinarily assume beneficial rights over the deceased’s estate, even where there is no will in place, and subject to any express provisions to the contrary.
For cohabiting couples, without a valid, up to date will specifying identifying a partner as a beneficiary, the surviving partner would have to apply to the court and show need under the Inheritance Act (Provision for Family and Dependents) Act 1975.
What can cohabiting couples do?
Reform continues to be called for in this area. While the current position remains, unmarried and cohabiting couples are urged to assess their situation and take advice to safeguard their interests in event of separation and ensure their wishes are followed on death.
The only way to enjoy the full legal benefits and protection of a marriage is to get married. But where marriage is not a preferred course of action, a cohabitation agreement could help to clarify and document formally issues relating to financial arrangements, contributions and asset ownership.
Having an up to date will is the most effective way to ensure distribution of your assets on death in accordance with your wishes. Dying without any will in place will leave your estate subject to the intestacy rules, which may not result in a desired outcome for your loved ones.
Pensions should also be reviewed as it may be possible to nominate your partner to have an interest in your pension and resulting entitlement on death.