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Busting the myth of common law marriage

Browsing the weekend newspapers recently, I came across an article which confirmed something that, from years of experience practicing family law, I had long suspected. The piece highlighted a British Social Attitudes survey which reveals that almost half of cohabiting couples believe they have the same rights as married couples - an assumption that can prove to be very costly.      

Unfortunately, the myth of ‘common law’ marriage has yet to be dispelled. I have encountered many cohabiting clients who seek advice on their financial entitlement upon the breakdown of their relationship. Their misconception is that, after a certain period living together, they have acquired the same rights as a married couple. With almost 3.5 million cohabiting couples in the UK, that means that a huge amount of people mistakenly believe that they are automatically protected by the law if their relationship ends.

Clearly, whether a couple chooses to marry or not is a matter for them. However, if you are cohabiting with a partner, it is important to take steps to secure your financial position at an early stage, as living together does not have a general legal status in itself.

If a cohabiting couple jointly own their family home, English law stipulates that the property will automatically be divided equally – even if one partner contributed more to its purchase – unless they made a written legal agreement at the time of purchase setting out an alternative arrangement. If one partner wants to challenge this in court, it is likely to be costly and there is no guarantee they will be successful.

Alternatively, a cohabitation agreement can be drawn up. This is a contract between you and your partner regarding arrangements such as property, bank accounts and debts if the relationship breaks down. If you own property, or plan to purchase a property jointly but by making unequal contributions, a ‘declaration of trust’ can be included which will establishes the proportions of investment. This ensures that, if the property is sold, you will both recover what you put in and it’s especially important when couples enter new relationships and have a lump sum, e.g. from a divorce that they have spent a lot of time and money on.

A cohabitation agreement should be carefully drafted and prepared, with both parties obtaining independent advice to ensure it is legally binding. It may seem unromantic and not something to consider when you are happy in a relationship. However, the expense and stress of going to Court can be avoided with planning and pragmatism.

Meanwhile, Resolution, a national organisation of family lawyers and professionals committed to the constructive resolution of family disputes, has been at the forefront of a campaign for change in the law to protect cohabiting couples. However, this doesn’t appear to be happening any time soon.