Advice Centre

Common Law Marriage
Apr

‘COMMON LAW MARRIAGE’ Does the concept really exist?

Living together but not married (AKA ‘Common Law Marriage)? What rights do I have?

Unmarried co-habiting couples is an increasing type of family choice in the UK, yet it appears, that in the event of separation, there is no adequate protection for such couples in the current family law. Such couples frequently assume the common myth of ‘common law marriage’ and are often unaware of their lack of rights, in comparison to married couples.

The gap in the law has a particularly detrimental effect on the financially vulnerable partner, most commonly the woman who had to stop or limit employment in order to care for the children and the household. It is utterly common for such partner to assume they are entitled to the assets shared by the family, but this is not automatically the case.

For example, if the property is registered in one partner’s name, the other is not entitled to anything unless the cohabitee can show that there was a ‘common intention’ that they should have a beneficial interest in the property, and relied on that common intention to their prejudice. The burden of proof is on them and in practice, it is often difficult to provide sufficient evidence. This is particularly the case since courts do not have the power to rely on factors such as the length of relationship or contributions made to that relationship.

In contrast, married couples will not have this issue as in case of a dispute, both parties are entitled to half of the matrimonial assets accumulated over the years, providing a fairer outcome for both parties.

Need for reform to marriage laws?

The landmark case that triggered the need for reform in the law on cohabitees was Burns v Burns (1984). The case involved an unmarried couple who lived together for 17 years and brought up their two children. The woman made no financial contributions to the family home and so in case of separation, it was held she acquired no interest in the house.

Although, the Court of Appeal acknowledged that ‘over a very substantial number of years’ the complainant ‘may have worked just as hard as the man in maintaining the family’, it was held there was no express agreement and some substantial contribution was required before an intention can be imputed that she was to take a share in the property.

Unsurprisingly, the current law had often been referred to as discriminatory and unfair, as parties are open to being left with nothing, in case of separation. The law is indeed complex and legal fees are high which means couples that are less well-off will not be in a position to pay for resolution of such disputes.

Will the pressure for reform change the outdated law?

The pressure for reform dates back to 1984, yet the law remains outdated. Efforts to introduce legislation have so far floundered. Numerous bills have been introduced, such as the Cohabitations Rights Bill which is awaiting a second reading in the House of Lords.

Summary

It is evident the law on co-habiting couples’ rights is obsolete and in need of reform. If you are an unmarried partner and wish to bring a claim based on cohabitees rights, remember it is crucial to obtain professional advice and support of a Solicitor within this practice to achieve the best outcome.

For a confidential discussion about this area of law, please contact Melisa Cunningham in the family team on 0333 358 3062 or m.cunningham@imd.co.uk.

 

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