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A moment of Clarity

Law lags as cohabitation increases

The latest edition of the Office of National Statistics’ Families and Households Survey, released on 8 November, revealed many things, one of which being that cohabitation is the second largest family type with 3.3 million families in the UK. Cohabiting families were the fastest-growing type of the three family structures in 2016, ahead of married families and single-parent families.

The rate of growth in cohabiting couples reflects how society’s values are continuing to shift away from traditional marriages and household structures to suit a more flexible arrangement for couples and any children they may have. However, expert family lawyers and Resolution accredited specialists for cohabitation laws at Irwin Mitchell Private Wealth are saying that the English and Welsh law fails to protect cohabiting couples in the event of relationship breakdown – despite many couples believing the opposite.

A 2017 study by charity One Plus One found that 47% of British citizens aged 18-34 believe that cohabiting couples have similar rights to married couples by them living together. Across all age groups, 58% of people did not realise common law marriage is not recognised by the courts. The position is different in Scotland, where unmarried couples who live together do have legal rights upon separation.

So where does the common law marriage myth come from? It is legal in several other countries including the US, but the term in the UK has only social connotations and no legal value.

“A common misconception amongst cohabiting couples is that by living together they are considered to be their partner’s common law husband or wife, and that this will allow them to make financial claims for themselves against their partner if the relationship breaks down. There needs to be greater awareness of the fact that there is currently no such thing as common law marriage under English law, and that cohabiting couples do not have the same legal rights as married couples,” said Ros Bever, National Head of Family Law at Irwin Mitchell Private Wealth.

Ros, who is also a Resolution accredited cohabitation law expert, continued: “In fact, whilst it is possible for unmarried parents to make financial claims against one another on behalf of their children, there is very little legal protection for them as individuals should they separate, which can create injustice and hardship, especially for the financially weaker partner.

“It is time for England and Wales to catch up and bring the law into line with how an ever increasing number of couples are choosing to live their lives, so that cohabiting families are afforded better legal protection on relationship breakdown.”

This change may be beginning to occur. The Cohabitation Rights Bill, initially introduced in 2008, has been resurrected and is in the early stages of parliament. Its return comes at an unfortunate time while Brexit dominates proceedings, but given the long-overdue issuance of legal rights for cohabiting couples there is cautious optimism the bill will soon be passed into law.

Resolution’s Cohabitation Awareness Raising Week takes place on the 27 November – 1 December 2017.

Published: 22 November 2017

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