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Cohabiting Rights And The Common Law Myth

According to the Parliamentary Inquiry into the Rights of Cohabiting Partners, there are over 3.4m unmarried couples living together in England and Wales, making cohabitation the fastest growing family set-up.

Many of these couples will be unaware that, if they separate or one of them dies, they won’t have the same legal protection as couples who are married or in a civil partnership. As family lawyers, it’s common to hear unmarried clients refer to themselves as being in a ‘common law’ marriage when they first come to see us, thinking that this will surely provide them with some financial protection on separation. The truth is that in this country, there’s no such thing as a common law spouse, and former cohabitees are left in a more precarious position than their divorcing counterparts. This is particularly heart-breaking when a partner dies without a Will, leaving the surviving partner in a very difficult position when it comes to their shared property and inheritance prospects.

The Cohabitation Rights Bill seeks to redress this imbalance, providing cohabitees with some of the protections afforded to married couples. This change is long awaited, and in our modern society where more and more couples are either delaying marriage, or not marrying at all, it’s imperative that our law catches up. In April, we welcomed, with a huge sigh of relief, the introduction of ‘No Fault Divorce’, something which family lawyers and other organisations have been campaigning tirelessly for many years for. Our divorce law was behind the curve, as many other countries have been using a no fault system for decades. Law reform takes time, new Bills must go through a rigorous process, and for good reason, but as family lawyers, we know all too well how the currently law is failing cohabiting couples, as we continue to wait for the law to change.