Cohabitation: exposing the myth of the ‘common law marriage’ and distinguishing fact from fiction

The way we were: historically there was respectable marriage which conferred financial dependence and security on women. Outside, a world of defiance of convention and no rights except minimal support for the child.

The way we are: cohabitation has lost stigma and become a parallel life choice. In 2016 there were 3.3 million cohabiting couples making it officially the fastest growing family type, more than doubling from 1.5 million just 20 years ago. The trend is not confined to younger people either with the Office for National Statistics in July 2018 revealing that the number of cohabiting couples in their sixties and seventies has never been higher. Notwithstanding this, the harsh reality is that living together does not of itself create legal rights against, or responsibilities between cohabitants legally, irrespective of whether it should morally. Living together, be it for 2, 10, 20 years or more provides neither cohabitant with rights to financial support for themselves at the end of a relationship.

The purpose of this article is to distinguish fact from fiction in the law as it stands for cohabitants, to look to the future and to consider practical and protective steps that can be taken.

Cohabitants on separation

In contrast to married couples there is no statutory framework to empower the courts to divide all the assets of cohabiting couples. As the law stands married couples enjoy superior rights over property, pensions and inheritance. On marriage breakdown the court has the power to redistribute property and finances, but it has no such power to do so on the breakdown of a relationship between cohabitants. Instead a cohabitant can only turn to contract, property or trust law for help and pursuing claims in these areas is often complex, uncertain and expensive.

Cohabitants on death

In contrast to married couples cohabitants do not benefit automatically under the intestacy rules. Nor is there any exemption from inheritance tax on assets passing to a cohabitant. It is essential therefore that cohabitants make provision for their partner in their will if either partner wants the other to be provided for financially in the event of death. In further contrast to married couples the courts cannot divide pensions for cohabitants. It is therefore important for any cohabitant who is a member of an occupational or private pension scheme to check the scheme rules for details of any benefits that may be payable to a partner and /or dependant.

Cohabitants with children

Fortunately, there is little distinction between married couples and cohabiting couples under the Children Act 1989. If parents cannot agree arrangements for the children, then whether married or unmarried, it is possible to seek the intervention of the court on matters such as with whom the child should live and how often they should see the other parent. The Child Maintenance Service also makes no distinction between married and unmarried parents and the parents liability is not dependant on his /her marital status.

There are however still limitations for cohabitants. For example, an unmarried father (in contrast to a married father does not have automatic parental responsibility. Parental responsibility includes amongst other things the ability to make decisions determining religion, education and consent to medical treatment. Schools, medical and other authorities may refuse to recognise the request for information from a parent who to their knowledge does not have parental responsibility. An unmarried father can obtain parental responsibility by having his name on the child’s birth certificate, by obtaining a court order or by entering into a parental responsibility agreement with the mother. The agreement must however be in a particular format and be registered at court.

What can cohabiting couples do to protect themselves?

Given the lack of legal protection for cohabitants practical and protective measures are as follows:

1. Enter a deed of trust setting out how beneficial interests in any jointly owned property are to be held.
2. Draw up a will making provision for each other and any children in the relationship.
3. Keep pension and life insurance nominations under review.
4. Enter into a cohabitation agreement to seek to give legal effect to their relationship. The agreement would be a formal contact setting out how a couple’s finances were to be run and how assets are to be divided on breakdown of the relationship. With high property prices in London and the South East many parents help their children financially to get on the property ladder by contributing towards a deposit. When the ‘Bank of mum and Dad’ assists in the purchase of a property jointly owned by a couple it is important that the parents document, before handing over any funds, the basis on which the money is given or loaned and what is to happen to it if the relationship breaks down. Otherwise they could be waving goodbye to thousands of pounds.
5. For cohabiting couples who decide to marry, it may be prudent for a pre-nuptial agreement to be prepared if one partner has significant inheritance prospects or brings much more wealth to the marriage than the other. A’ pre nup ‘can give them clarity about which assets are to be shared and which ring-fenced if there is later a divorce.

Time to move on – how could the law be changed so as to provide greater legal protection for unmarried couples on separation?

In terms of statutory reform there are two principal models for the statutory regulation of relationships other than traditional marriage as follows:

1. An ‘opt – in ‘system of registered partnership with defined consequences in particular areas of law. This model is widespread in Europe, notably in France where the parties may enter a ‘Pacte Civile’. The nature and content of these systems is a question of social policy for the legislature, in particular how closely they mirror those of marriage and the precise details differ. It is important to recognise in ‘opt – in’ schemes that rights are not automatically conferred. It therefore relies on a mutual willingness to register and does not give full protection to the vulnerable.

2. The ‘status ‘approach is legal regulation proposed by operation of law through statutory definition of a relationship to which legal consequences in defined areas are attached. This model is widespread in Australia and New Zealand. Would this however simply be another lesser form of marriage? Some cohabitants may after all not want to have rights imposed on their relationship and hence their decision not to marry. In England, Resolution, the national organisation of family lawyers, is proposing that cohabitants meeting eligibility criteria indicating a committed relationship should have a right to apply for certain financial orders if they separate. This right would be automatic unless the couple chose to opt out. Resolution’s proposal envisages that the court would make the same types of orders as they currently do on divorce but on a very different and more limited basis.

As to which approach is best the issue remains one of individual autonomy versus state maternalism and whether all cohabiting couples, in fact, really want a lighter legal straightjacket.

Conclusion

Other countries such as Australia and Canada and closer to home Scotland recognise cohabiting couples’ relationships and provide legal protection. The law also now recognises civil partnerships which bestow many of the same rights upon civil partners as spouses within marriage. Despite this the current legal position for people who live together in England and Wales more often than not creates injustice and hardship. The Law Commission has recommended change in this area and a motion to bring our laws in line with modern family types is currently supported by 23 MPs from all of the main parties. The Government therefore has an opportunity to update the legislation should it choose to do so and bring the law in step with how many couples are choosing to live their lives. However, unless and until the law is changed, couples need to be aware that rights do not exist through ‘common law’ marriage so they can take appropriate steps to protect themselves and their families.