With 3.3 million unmarried individuals living together, cohabitation is the fastest growing family type in the UK. Yet despite its popularity, cohabitation and its associated legal rights are often misunderstood. Resolution’s survey on cohabitation found that nearly two thirds of couples believed in the ‘common law marriage myth’, thinking that cohabitation for an extended period of time would offer them the same types of legal protection as marriage. However, this is simply not the case.
Common law marriage is a myth
Unlike jurisdictions such as Australia and certain states in the United States, the UK does not give any legal validity to the concept of common law marriage. This means that regardless of how long a couple live together, they do not have the same legal rights as a married couple. Contrary to popular belief, moving in together does not give either party automatic rights to the other’s property.
This is significant because upon relationship breakdown, married couples are protected under the Matrimonial Causes Act 1973 (and the corresponding Marriage (Same Sex Couples) Act 2013 and Civil Partnership Act 2004 for same sex couples). Whilst discretionary, these are concrete bodies of law that set out how assets should be divided in order to produce a fair outcome for both parties, whilst providing support for the financially weaker spouse. Under statute, the contributions of both parties to a marriage are acknowledged when deciding on the final award of assets, without prejudice to whether these contributions were domestic or financial.
In contrast, there is no such holistic regime for cohabitants in the event of separation. Cohabitants are free to separate without going to court, and even if they choose to go to court they are subject to a piecemeal application of varying types of law instead of a set statutory scheme. Cohabitation law is complex, involving land and trusts law for the shared home, child law to indirectly benefit the primary carer, as well as contract law if the couple concludes a “living together arrangement” to privately arrange asset division. This could take couples in long term cohabiting relationships by surprise, who may have been expecting an automatic entitlement to their partners’ assets.
If there is no common law marriage, how can I protect myself as a cohabitant?
There are two main ways to protect yourself as a cohabitant. Firstly, couples are increasingly being encouraged to enter “living together arrangements”, setting out who owns what assets and in what proportion, as well as documenting how they will divide their property and savings on relationship break down.
Additionally, couples can protect their beneficial ownership of the shared home by an express declaration of trust. This requires a deed and signed writing, but once completed is conclusive as to the parties’ beneficial shares. This is significant because an express declaration of trust explicitly sets out how beneficial ownership of the home is to be shared, as opposed to subjecting the crucially important matter of the family home to legal presumptions about intention that are used in inferred trusts. Inferred trusts can be difficult to establish, leaving too much uncertainty for the financially weaker partner.
However, in practice these methods may be different to execute. Couples often do not know that they need to have these discussions about ownership, especially given how prevalent the misconception of the common law marriage is. Furthermore, even if they know that these are important issues to discuss, couples may hesitate to do so. Whilst in a relationship, couples may find it demoralizing or crude to outline in such detail what should happen to their assets upon separation, and are unlikely to formalize their discussions with a solicitor.
Looking forward – are things set to change?
There is certainly discord with the present situation. Baroness Hale, President of the Supreme Court, has stated that she views the current system as unjust, with laws “bound to leave some people not receiving a fair and just allocation of resources when the relationship breaks up”.
On the other hand, others argue that giving cohabitants the same legal protection as married couples would undermine the institution of marriage by eroding the legal differences between the statuses of cohabitants and spouses. However, the tenability of this argument weakens as society becomes increasingly progressive and cohabitation continues to grow in popularity.