Common-Law Marriage?
It is said that there are almost 3.6 million couples living together unmarried in the UK. Despite popular belief, there is no such thing as ‘common-law marriage’: a cohabitee has no special legally recognised rights as a partner. The legal protections and tax privileges afforded to married couples do not apply to cohabitees.
Unlike a divorcing couple, financial support is not available if unmarried couples split-up. There are ways to obtain financial support if you have children, or in some cases if you were engaged. To inherit each other’s property on death requires a Will. Intestacy rules state who can inherit if a person dies without a will but these rules do not automatically recognise cohabiting couples.
If spouses or civil partners split-up divorce law is available to divide a couple’s assets fairly. However, cohabitees are left to navigate often complex areas of law if they cannot agree on the shares of jointly owned property. If you separate and cannot agree on how to divide the value of a shared home, or even to sell it or not, you have to rely on laws that were not designed for this context. The outcome is uncertain and the process can be slow and expensive. This is in real contrast to recent changes to make divorce simpler and less conflictual. We have No Fault divorce, and streamlined systems, developed into an online service.
Couples can enter into cohabitation agreements which can be legally binding and offer some certainty if the relationship breaks down. These agreements can set out how finances will be managed, and what happens if you split up or if one of you becomes ill or dies. Among other things they can include mortgage payments, bills, pensions, child arrangements and next of kin rights. These agreements can provide a degree of certainty if they are properly drafted and the parties have given informed consent.
However, despite the protections that cohabitation agreements offer, it seems that only 15% of cohabiting couples have them. The majority of couples are still legally unprotected, or treated in the law as single people. The financially weaker party, who might not hold property in their name, is economically vulnerable in long-term cohabitation especially without a cohabitation agreement.
There have been many calls for reform to offer protection to cohabiting couples, but very little protection exists. Recently, the Women and Equalities Committee of the UK Parliament submitted their report on the Rights of Cohabiting Partners. This recommended protection to be made available on relationship breakdown, including legal provisions if one member of a couple died intestate. It is proposed that there might need to be a clear definition of when a couple might be brought into the protection of any new rules, so that cohabiting couples know exactly where they stand in the eyes of the law.
If you are in a cohabiting couple, a cohabitation agreement does improve matters, and it is worth recognising that the legal protection available to you is very limited without it.
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