Common Law Marriage; A Common Law Myth

 

Magda Zamojska For Avadis & Co. Solicitors

16.02.2016

 

Cohabitation is often frivolously referred to as ‘common law marriage’ but what many often forget is that this reference is just that – frivolous – since cohabiting relationships are not actually recognised by the law. The act of living together, especially if for a long period of time, understandably leads to couples acquiring misconceived perceptions of what they may be entitled to in regards to finance, housing or inheritance.

After dedicating their time and money to a relationship, they expect something in return when things turn sour. Yet, unlike marriage where couples are afforded extensive rights; in the event of the separation of a cohabiting couple, one is left with very little claim to any of the above.

A current case before the County Court at Central London has brought this issue to light once again. It concerns one Joy Williams’ battle for her deceased partner’s assets; despite living with him for 18 years, his assets were automatically transferred to his estranged wife upon his death. Family law stresses the importance of achieving fairness but in this field it can be argued that it is failing to do so. Is the answer to grant the same legal protection to cohabiting couples as to married couples?

No, says Parliament. Placing cohabitation on equal legal standing as marriage will risk throwing the marriage institution into jeopardy. Instead, there are less drastic solutions. One of these is cohabitation agreements. Provided these are appropriately drafted, they can set out how a couple is to split their property, assets and even child care if the relationship was to break down. This, however, is not a popular method as it encounters the same problem as that of prenuptial agreements, namely being considered “unromantic”.

Alternatively, making a will in favour of your partner is a way of ensuring that they are not left out in the cold in the event of your death. But this, of course, only applies where a partner dies and not when (as is more common) the relationship simply ends…

So, with a reported 20% of families in the UK in 2015 being made up of cohabiting couples is it rational that the best form of protection is indeed taking the plunge and getting married? Perhaps not, but the government’s reluctance to adopt any strict legal rules for cohabiting couples as of yet (such as its rejection of the Law Commission’s 2007 Report) indicates that this will be one tough issue to crack. For now, all that remains is to set aside the stigma attached to cohabitation agreements so as to avoid ending up in such a predicament as Ms Joy Williams.  

References:                 

https://www.citizensadvice.org.uk/relationships/living-together-marriage-and-civil-partnership/living-together-and-marriage-legal-differences/#h-death-and-inheritance

http://www.familylaw.co.uk/system/froala_assets/documents/379/Cohabitation_and_Common_Law_Marriage_briefing_paper_Feb_2016.pdf

 http://www.legalcheek.com/2016/02/outdated-common-law-marriage-rules-dragged-through-the-courts/

http://www.theguardian.com/money/2013/mar/09/cohabitation-agreement-essential-non-married-coupleshttp://www.theguardian.com/money/2013/mar/09/cohabitation-agreement-essential-non-married-couples