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The common law marriage myth and why cohabitation laws are unlikely to change

Posted on: 23rd November 2017

It’s the fastest-growing type of family unit in the UK but, under current law, cohabiting couples have few rights at the end of a relationship and are treated as unrelated individuals, regardless of the time they’ve spent together.

Despite rumblings from the Law Commission and the private Cohabitation Rights Bill in 2014/15, family lawyer Jacqueline Major , a Head of Family Law team, says introducing legislation to protect cohabitees remains a political hot potato and is unlikely to succeed.

“This is because for every proponent of change, there is another who says that cohabitation should be unregulated precisely because that is its key distinction from marriage. If they chose to, people should have the freedom to have such relationships without financial consequences,” she says.

“It’s right to push for change and I fully support Resolution’s proposals [below], because too many people fall into the trap of believing the ‘common law marriage myth’ that, somehow, because they’ve been together a long time and have children, they’re protected by the law in the same way as if they were married.”

Her advice is to make sure you understand what you are letting yourself in for so that you both make an informed choice and there are no unpleasant surprises lurking in the future.

“People, often women, usually find to their detriment that despite contributing to the success and prosperity of family life for ages, if they part, they have no access to financial support.

“Some may have a claim for financial support on behalf of their children under the Children Act 1989, but these remedies are not always enough. Others may have a claim in respect of property under the (complex) common law of trusts, but they would need to show an agreement to share the property or a contribution to the value. As a result, many cohabitants and their children can face financial hardship following a relationship breakdown.”

The Family Law team at HJA offer the following advice to protect couples who decide not to marry:

  • Do consider entering into a cohabitation agreement before moving in together. This will set the ground rules for the financial and other arrangements in the relationship and may prevent litigious issues if you separate.
  • Do make it clear who owns property and in what shares. This can be detailed in a deed of trust and a cohabitation agreement, and a recording on legal title of the property. Update it to reflect any changes.
  • Do keep finances separate – it will be easier to see who has what should you separate and will avoid heated disputes.
  • Do keep accurate records of your financial contributions to any property held by your partner and vice versa.
  • Do write “gift” or “loan” on any payments made to your partner (check, bank transfers or direct debits).
  • Do remember that if you have children you will both be financially responsible for the children regardless of whether you were married or not.
  • Do make a will to ensure your partner will inherit from you should you die as cohabitants do not benefit automatically under the intestacy rules.
  • Don’t agree to your partner buying a property and placing it in their sole name if you make a direct contribution to the purchase price.
  • Don’t make a significant financial contribution to the property, such as paying for an extension, without agreeing whether this increases your interest. Before you contribute or as soon as possible, revise your cohabitation agreement, deed of trust and the legal title.
  • Don’t make direct contributions to the mortgage repayments unless you both decide whether this gives you an interest in the property. Again, record this in a cohabitation agreement and/or deed of trust.
  • Don’t co-sign or guarantee debts incurred by your partner unless you intend to be equally responsible for repaying them. If you separate, you will continue to be legally responsible for them.

ENDS

For further information, please contact:
Kerry Jack or Nicola Pearson at Black Letter Communications
kerry.jack@blacklettercommunications.co.uk or nicola.pearson@blacklettercommunications.co.uk
020 3567 1208

Notes for Editors

Resolution Awareness Week 27 November – 1 December 2017

Resolution has put together a series of proposals based on the 2007 Law Commission recommendations it believes would protect cohabitants.

  • Cohabitants meeting eligibility criteria indicating a committed relationship ie who have lived together as a couple for a minimum of five years (or less in cases of exceptional hardship), or who have children together, should have a right to apply for certain financial order if they separate. This right should be automatic unless the couple chooses to ‘opt out’.
  • The court should be able to make the same types of orders as they do on divorce, but on a very different basis. There should be a presumption that the couple should be financially self–supporting a soon as possible (maintenance should generally be limited to three years), there will be no presumption of equal sharing of assets and claims should be limited to reasonable needs.
  • The court should only be able to make a financial award that is fair. They should have the flexibility to make fair awards by looking at all circumstance, making sure the welfare of the children comes first, and taking into account factors such as the level of commitment to each other and financial and other contributions to the couple’s household including looking after the home and any children.
  • Awards might include payments for child care costs to enable a primary carer parent to work.
  • A cohabitant should need to make a claim within two years of separation. The court should have the power to extend the time limit in exceptional circumstance.
  • Allowing a surviving cohabitant to apply for bereavement damages as part of a compensation claim.
  • Giving cohabitants an insurable interest in each other’s lives.
  • Amending existing legislation allowing a surviving cohabitant to make claims on the death of the other in order to bring those provisions in line with the general approach taken by our new scheme above for certain separating cohabitants.

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