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Cohabitation And The Myth Of Common Law Marriage

A surprisingly large percentage of people living in England and Wales think that unmarried couples who live together have the same or similar rights to property and financial support as couples who are legally married or in a civil partnership. A so-called ‘common law marriage’ is a myth.

Many assume that being in a relationship, living together and perhaps raising a family together mean that the law will recognise their relationship and provide them with legal protections if things go sour. In reality, separating unmarried cohabiting couples do not have the same rights as divorcing spouses. As the law currently stands, unmarried couples have very little protections in place for them.

Are things going to change?

The law has remained unchanged for decades, despite a vast number of couples in committed long-term relationships choosing not to tie the knot. Many organisations and practitioners agree that it is about time that the law reflected the shift in social norms, to keep up with the modern world.

The Law Commission published a report in 2007 recommending a number of reforms for cohabitation laws. The aim of their project was to provide recommendations on how best to rectify ‘the financial hardship suffered by cohabitants or their children, on the termination of their relationship by separation or death’. Unfortunately, these recommendations were not taken any further. 

Fast forward to 2022, and the Women and Equalities Committee echoed the sentiments of the Law Commission report, and made further recommendations for the urgent need for reform of the law in this area, but still no progress has been made.

This will no doubt continue to be a hot topic, and the conversation will remain open for the foreseeable future. 

Does this mean I have to get married to protect myself?

There are steps which you can take if you are cohabitating or if you are in the process of separating from your partner.

You may wish to consider entering into a Cohabitation Agreement. The agreement sets out the assets which you both own and makes provisions for any financial issues that would arise on separation. It’s very important for both parties to have legal advice before entering into such an agreement.  

It’s also important to make a Will, so that you can set out your wishes as to what will happen to your assets when you die. 

If you separate from your partner and cannot come to an agreement about your finances, then you may decide to make an application to court under the Trusts of Land and Appointment of Trustees Act 1996. This is a complex area of the law, and you should seek legal advice at an early stage. 

If you are separating and have children together, you could consider making an application to the Family court under Schedule 1 of the Children Act 1989, which is where you ask the Family court to require the other parent to make financial provision for your children.  

There is a lot of room for change in this area, however whilst we patiently wait for the law to catch up with societal change, it is always advisable to take precautions when cohabiting. The Irwin Mitchell Family Team has a team of specialist lawyers with a wealth of experience who can help.   

Read more about Irwin Mitchell's expertise in cohabitation law