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Divorce law blog

The Common law marriage myth

21/04/2015   By: Andrew Moore

A few years ago a British Social Attitudes survey showed that 51% of participants thought that unmarried couples living together for a period of time would have a “common law marriage”, giving them the same legal rights as married couples. The reality is that such a concept has not existed in England and Wales since 1753.

The law as it stands leaves a cohabitant with very limited financial rights if their relationship breaks down. With 3 million heterosexual and 84,000 same sex families in the UK, it is it is imperative for the law relating to cohabitants to be brought in to the 21st century to ensure it is fit for purpose and people aren’t left suffering unfair and unintended outcomes.

There is hope on the horizon with the Cohabitation Rights Bill having had its second reading in the House of Lords in December 2014 and with reform being official Liberal Democrats policy. However, the call for change is long-standing and there is no guarantee that we will see legislative change in the foreseeable future.

So what rights does a cohabitee have?
A cohabitee has no entitlement to maintenance for themselves nor a share of their partner’s pension. If there are no children it is highly likely that the only avenue for the cohabitants to explore is to try and claim an interest in their partner’s property. A ‘beneficial interest’ (an interest in property legally owned by another) may be established if there is:

1. an express declaration of trust in existence setting out their shares;

2. a resulting trust – established through a direct contribution to the purchase of a property

3. a constructive trust – a common intention (established through a verbal agreement or inferred from conduct) which was relied upon by the cohabitant to their detriment; or

4. proprietory estoppel – an assurance of an interest in the property which again is relied upon to the cohabitant’s detriment.

What is the financial position if children are involved?
The Child Maintenance Service (CMS) has jurisdiction for all maintenance cases where the non-resident parent earns less than £156,000 gross per annum. See: https://www.gov.uk/child-maintenance/overview

For those cases where there is greater wealth it is possible for the parent with care to make an application to the courts under Schedule 1 of the Children Act 1989 for further financial provision for the benefit of the child, including:
1. top up maintenance (only if a maximum maintenance assessment has been made by the CMS);

2. payment of school fees;

3. lump sums;

4. a “carer’s allowance” eg to provide for child care costs, running a car to etc; and

5. purchase or transfer of a property to be returned to the parent when it is no longer needed by the child(ren). 

It is important for cohabitants to fully understand their financial and legal position should their relationship break down. Should they find themselves in a position which was not intended by the couple, now, while the relationship is a strong and happy one, is the time to remedy that. Such a review should be an opportunity to discuss and record those intentions in a cohabitation agreement, make a Will and/or review the ownership of property to ensure it reflects the parties’ intentions. 

The author would like to thank Jane Booth for her seminar notes upon which this blog is based.

Associate (Manchester)

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