In England and Wales, there persists a pervasive myth surrounding the concept of “common law marriage.” Many individuals believe that cohabiting couples enjoy similar legal rights to married couples, particularly after a certain period of living together. This misconception, however, can lead to significant legal and financial issues when these relationships dissolve.
The term “common law spouse” is often used to describe partners who live together without formalising their relationship through marriage or civil partnership. Despite the widespread belief in common law marriage, the law in England and Wales does not recognise such a status. This leaves cohabiting couples vulnerable in various legal areas such as property rights, inheritance, and financial support.
The law governing relationships in England and Wales is clear: rights and protections afforded to married couples and civil partners do not extend to cohabitants. Unlike in some other jurisdictions, English law does not automatically provide unmarried couples with rights over each other’s property or finances, regardless of the duration of their relationship.
The Law of Property Act 1925 and the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) govern the property rights of cohabiting couples. Under these laws, an unmarried partner does not have an automatic right to a share of the family home unless they can prove a beneficial interest through a trust claim.
The primary issue with the myth of common law marriage is the false sense of security it provides. Many couples believe that cohabitation confers legal rights similar to those of marriage. This can lead to serious consequences if the relationship breaks down, especially where property and children are involved.
Property Rights: If a cohabiting couple separates, the division of property can be complex and often feel unfair. For instance, if the family home is registered in one partner’s name, the other partner has no automatic claim to it. This can result in one partner being left without any legal right to the home they may have contributed to financially or otherwise.
Inheritance: Unmarried partners have no automatic right to inherit from each other under the Inheritance (Provision for Family and Dependants) Act 1975. This means that if one partner dies without a will, the surviving partner could be left without any inheritance, even if they lived together for many years.
Financial Support: On separation, unmarried partners do not have the same potential claim to financial support (maintenance) as married couples. This can be particularly problematic if one partner sacrificed their career to care for children or support the other partner’s career.
Many people only realise the limitations of their legal status during times of crisis, such as separation or death. By then, it is often too late to address the inequalities and injustices they face.
Moreover, the legal system itself can be complex and daunting for those seeking to establish their rights. Proving beneficial interest in a property through TOLATA claims requires clear evidence of contribution and/ or intention, which can be difficult to gather and prove.
There are steps that can be taken to minimise the risk:
1. Cohabitation Agreements: Couples might want to consider drafting a cohabitation agreement, which outlines their rights and responsibilities, particularly concerning property and finances. This can provide a clear framework and reduce disputes if the relationship ends.
2. Wills: Unmarried partners should make wills to ensure that their wishes are followed upon death. This is especially important for ensuring that their partner is provided for, as intestacy rules may not recognise an unmarried partner in all circumstances.
3. Legal Advice: Seeking legal advice early in the relationship can help couples understand their rights and the potential pitfalls of cohabitation. A solicitor can guide them through the process of protecting their interests, whether through property ownership arrangements or other legal means.
Conclusion
The myth of common law marriage is a dangerous misconception that can leave cohabiting couples without legal protection when they need it most. By understanding the limitations of their legal status and taking proactive steps to safeguard their rights, couples can mitigate the risks associated with cohabitation.
If you require help with a cohabitation dispute, or would like to discuss potential pitfalls of cohabitation with a barrister, contact clerks@anvilchambers.co.uk