Cohabitation – the myth of common law marriage
Cohabiting couples are the fastest-growing family unit in the UK, with the Office for National Statistics releasing recent data showing that cohabiting couples have increased by 16% between 2012 and 2022. This data sits alongside the continued decline in recent years of the marriage rate.
The reason for the increase in couples choosing to cohabit as opposed to entering marriage is not clear, but it is likely due to the modernisation of the views of society around couples living together outside of marriage. In addition to this, the cost of a wedding and the associated stress of this along with the continued increase in the cost of living are bound to be a factor in couples deciding whether to marry or not. A further reason for couples choosing to cohabit may be due to their belief that they will be afforded the same level of protection financially should they separate, akin to the protection afforded to married couples.
There is a misconception that cohabiting couples, especially those couples that have lived together for many years, have the same legal rights as a married couple, and the term “common law marriage” continues to be referred to, but this is a myth and not true. Greater awareness needs to be drawn to the legal distinction between the legal rights of a married couple and those of a cohabiting couple. Further awareness is needed around the fact that some religious ceremonies are not recognised as a legal marriage in the UK, an example of this being a Nikah ceremony in which the couple will view themselves as married but should they separate the financial provisions on divorce would not be available to them.
The law that is applicable to cohabiting couples is way behind the curve of the modern way of life and this has been recognised and recently reviewed by MP’s from the Women and Equalities Commission, with their report and recommendations to the government published in November 2022. Whilst the government upon their review of their report recognised that there was a need for reform and an increased awareness in the disparity between the protection in law to cohabiting couples compared to married couples, the focus remains on the reform of the law of financial provision on divorce, before any reform to the law surrounding cohabiting couples.
What can cohabitees do to protect themselves?
One way of providing some additional security is the preparation of a cohabitation agreement. A cohabitation agreement is a document that is drafted by a solicitor clearly setting out the parties’ intentions should they separate. The document can refer to the assets each party holds and how they are to be divided upon separation.
Whilst a cohabitation agreement is not legally binding it can be persuasive in evidencing the parties’ intentions should there be a dispute in the future. This is particularly important regarding property, and in a case where one party is not named on the titled deeds of a property, including the family home, but the intention between the parties is that they hold the property jointly. The intention of the parties is essential in cohabitation cases, as any dispute is governed by the law of property and the law of trusts, this does not consider the parties’ needs but the parties’ intentions if they differ in the legal title, and evidence to support this is paramount in any case that is disputed.
It is not possible within the remits of the current law for cohabitants to be a pension share to one party following separation, and any ongoing financial support would need to be made on a voluntary basis as the current law does not have the power to enforce this. A review of parties’ financial matters with an independent financial advisor may assist in providing additional levels of protection, particularly to a weaker financial party, to review and advise on how the parties’ respective assets are held.
Another point of consideration for cohabiting couples is the financial provision to the other in the event of one of their deaths, or the lack of this unless they have a valid will in place. Under the current laws of intestacy, a cohabitee would not benefit automatically in the event of their partner’s death, in the same way a spouse would. In some circumstances, it may be possible to make a claim under the current inheritance legislation, but it would always be recommended for a will to be in place clearly setting out the parties’ wishes in the event of their death.
If you would like to discuss the preparation of a cohabitation agreement, then please do not hesitate to get in touch.