Cohabiting couples and “common law marriage” – time for reform of the law?

For some time, there have been calls for reform in relation to the rights of cohabiting couples but as far as the Government is concerned, the time is not right for such reform.

The Government has recently rejected a number of recommendations made by the House of Commons ‘Women and Equalities Committee’ for reform as set out in their report on The Rights of Cohabiting Partners.  In particular, the Committee had called for reform to protect unmarried couples who live together, and their children, from the financial impact of a breakdown in the relationship but in the Government’s view, there needs to be reform to the law of marriage and divorce first (work on which is ongoing) before change can be considered in respect of cohabiting couples.

Given that cohabiting couples represent the fastest growing family type in England and Wales, it is perhaps surprising that the Government has taken such an approach.

Common law marriage

There is a common misconception that a partner automatically acquires rights equivalent to those in the event of marriage or civil partnership by virtue of cohabitation.  The “common law marriage” myth is just that and leads to many believing that they have financial protection in the event of a breakdown of their relationship but that is far from the reality.

In actual fact, upon the breakdown of a relationship where the couple are unmarried, cohabitants have to rely on the law of trusts and property in relation to interests relating to property or in some circumstances can make a claim on behalf of a child.  This is in contrast to married couples or civil partners who have the protection of specific legislation which sets out how the Court will deal with disputes in relation to financial matters on the breakdown of such a relationship.

It is hoped that the Government will reconsider and undertake a review followed by reform to address the imbalance.  In particular, the Committee’s recommendations in relation to a potential “opt-out” cohabitation scheme such as that which exists in other jurisdictions for example in New Zealand and inheritance rights for cohabiting couples (particularly in relation to the family home) need further consideration

Will Mercer is a Partner in Taylor Walton’s Family Department and advises on all aspects of family law including divorce and dissolution of civil partnerships, financial implications on the breakdown of relationships, Pre-Nuptial and Post-Nuptial Agreements and matters relating to children.  Will can be contacted on 01727 818509 or via email.