Exposing the common law marriage myth

Young couple

An alliance of legal organisations and family charities is urging the government to provide legal protections for cohabiting couples.

In a letter to The Guardian, the organisations note that currently one in eight adults in England and Wales are cohabiting, while as many as two in three cohabiting couples did not realise there is no such thing as ‘common law marriage’ in England and Wales, according to a recent survey.

The letter states: “As a crucial step towards securing fair outcomes for millions of people, we urge the government to take steps to bring forward, as a minimum, basic protections for cohabiting couples.

“In the interim, the government must also raise public awareness of the lack of protections in place and challenge the common law marriage myth. Only by understanding they are at risk can couples take steps to protect their family if they separate or if they are left bereaved.”

The letter was sent by Resolution, the Association of Lawyers for Children, the Bar Council, the Chartered Institute of Legal Executives, the Family Law Bar Association, OnlyDads, OnlyMums, the Law Centres Network, the Law Society of England and Wales’ Family Law Committee, Legal Action Group, Legal Aid Practitioners Group, One Plus One, Relate and Rights of Women.

Gaby Hardwicke Family Law Partner Debra Frazer said: “The law needs to change to recognise the reality of how couples are living today. The general public are often unaware that cohabiting couples do not have the same legal rights as married couples. When such relationships break down or when one partner dies this only leads to further stress and anxiety in an already highly emotive and difficult situation for all concerned.”

The common law marriage myth

It’s a common misconception that unmarried couples who live together have the same legal rights and protections as married couples and those in a civil partnership. In reality, while cohabitants do have some legal protection in certain areas, there is no general legal status for such couples.

What protection is available for cohabiting couples?

A cohabitation agreement (also called a living together agreement) can set out how a cohabiting couple’s assets should be divided if they separate. It can also set out any child support and financial maintenance arrangements. To be legally enforceable, a cohabitation agreement must be deemed ‘fair’ in the eyes of the court and both parties should obtain independent legal advice on the agreement which can cover any aspect of the cohabitation including property rights, capital division and pension nominations.

For expert help with drawing up a cohabitation agreement, please contact one of our Family Law partners:

Have you made a Will?

In addition, it is vital that cohabiting couples make Wills setting out their wishes in relation to their estate on death – i.e. what should happen to their property and financial assets, as at present, should one cohabitee die without leaving a Will, their partner will not automatically receive their estate. Should you need advice about preparing a Will please contact one of our Private Client partners:

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