10 December 2020 Margaret Simpson

One of the biggest misconceptions in family law is that a ‘common law marriage’ exists in England and Wales. With one in eight people aged over sixteen now living together without being married or in a civil partnership, cohabiting couples are the fastest-growing family type. But the law lags far behind societal changes in terms of legal protections for these couples following separation or bereavement.

Unmarried couples and property rights

Legal ownership is the starting point for determining property rights. It is difficult to assert an interest in property if you are not the legal owner. However, the lack of legal title does not make it impossible for cohabitees to make a claim.

The rights of cohabiting couples form one of many challenges around keeping family property or businesses (particularly farming businesses) in the family upon relationship breakdown or divorce – particularly if the younger generation have been living in a family property with their partner. Promises that “this is our house”, or financial contributions made by the non-owning party towards renovations or improvements can stand as evidence to establish an interest in property in certain circumstances. Resolving such disputes is often costly and time-consuming, causing upset and worry to the whole family.

Conversely, if property is held in joint names, the presumption is that each owner holds equally, even if one owner has made a much larger financial contribution towards its purchase. I regularly see instances where the “bank of mum and dad” or even grandparents have assisted with property purchases for adult children and their partners.

The position is slightly different in cases involving children, but unmarried couples still have far fewer rights than those who have married.

Options for unmarried couples

A cohabitation agreement can provide certainty and the security of knowing where the parties stand in the event of relationship breakdown. The agreement sets out the cohabiting couple’s intentions and records each party’s rights in relation to property, bank accounts, and financial contributions. It will also identify who owns the property and whether contributions made by a cohabitee will result in them acquiring an interest in the property at a later date.

This area of law is complex and it is important that legal advice is obtained at the earliest opportunity. All the lawyers at Silk Family Law are family law specialists, many of whom regularly deal with complex assets and farming or land and trust rights issues.

For more advice and guidance on divorce during Covid19 and generally, please contact Silk Family Law on 01748 900 888 or visit www.silkfamilylaw.co.uk.

This article, written by Silk Family Law partner and co-founder, Margaret Simpson, first appeared in the Yorkshire Post ‘Country Week’ on 5 December 2020.

Blog by Christian Butler, solicitor

The majority of cohabiting couples in England and Wales still believe the myth of “common law marriage” according to a group of high profile national charities and family law organisations.

In a letter to The Guardian last Saturday, 18 August – traditionally one of the busiest days of the year for weddings – senior figures from 14 bodies urged the government to change the law to offer “basic legal rights” to couples who live together. Organisations behind the letter to the national newspaper include Resolution, the professional body for family law specialists, The Bar Council, The Family Law Bar Association and charities Relate, OnlyDads and OnlyMums.

As regular readers of this blog will know, as a firm my colleagues and I frequently stress the potential pitfalls of cohabitation, and the need to give legal protection to couples who chose to cohabit rather than marry.  As the law stands currently, people who live together do not have the same rights in law as those who are married, or in a civil partnership.

The number of families formed by unmarried, cohabiting couples has grown significantly in recent years, according to the Office for National Statistics (ONS). In 1996 there were 1.5 million cohabiting families in the UK. By 2017, the figure had risen to 3.3 million.  Indeed a recent report estimates that one in eight adults in England and Wales are cohabiting.

As marriage rates drop, and more couples opt to cohabit, this situation potentially leaves millions of people vulnerable financially if their relationship fails, or their partner dies.

The letter in The Guardian says:

“Society is changing, but sadly the law lags behind. A recent survey showed as many as two in three cohabiting couples were unaware that there is no such thing as “common law marriage” in England and Wales. These couples mistakenly believe they have the same legal and financial rights and protections as married couples.

This misunderstanding can lead to significant problems if the relationship ends, as under current law it is possible to live with someone for decades and simply walk away without taking any responsibility. Most commonly, this can lead to injustices for women and children, particularly in cases where a mother has given up or reduced her work to raise a family.”

It has been suggested that a crucial step towards fairer outcomes for millions of people would be for the government to introduce, as a minimum, some basic legal protection for cohabiting couples.  There are also calls on the government to raise public awareness of the lack of legal rights for couples who live together, and to challenge the myth of common law marriage.  Whether one believes that rights should be introduced for cohabiting couples or not, I believe it vital that the public is well informed as to the rights they have and, importantly do not have, when opting to cohabit as opposed to marry.

As well as having no legal rights if a relationship breaks down, unmarried cohabitants can be left very financially exposed if their partner dies.  Upon the death of a partner, unmarried cohabitants may not have rights to the deceased’s pension assets and are unable to claim certain benefits.  There are also Inheritance Tax consequences, which may have been avoided had the parties been married.

My colleague Wayne Lynn blogged about Siobhan McLaughlin who took her case to the Supreme Court to win the right to claim her late partner’s occupational pension.

Recent reports highlight evidence from the Home Office that there has been a rise in deathbed marriages- such as Sir Ken Dodd who married his long-term partner Anne Jones just two days before he died.  I believe the reason for this is often to bestow rights on the survivor that they would not have had, if the parties had not married.

My advice to anyone opting to live with their partner and not marry is to consult a specialist family lawyer to ensure an understanding of their position should the relationship breakdown or should one of them die.  Indeed in many instances, I would recommend that a cohabitation agreement, also known as a living together agreement, is entered into. This agreement would set out how the couple will deal with their property and other financial matters should they separate.