The myth of cohabitation and the common law marriage

It isn’t true that those who cohabit have the same rights as those that choose to marry or have a civil partnership.

Cohabitation is when a couple choose to live together without marrying or entering into a civil partnership. Some couples believe they have a ‘Common Law Marriage’, often because they have lived together and/or have been in a relationship for many years, however there is no such thing.

This type of family structure is very popular and is the fastest growing type in the UK, with a total number of over 3.6 million UK cohabitant families recorded in 2021.

Cohabitees have very little legal protection compared to those who enter a marriage or civil partnership, this has implications when relationships breakdown or when there is a death of a partner. Dealing with issues such as pensions and the family home can sometimes be a long and complicated process for cohabiting couples. 

How are disputes resolved?

If there is a dispute over ownership or occupation of the family home this is dealt with under Civil Law, the Trust of Land and Appointment of Trustees Act 1996 (ToLATA). In brief, cohabitating couples do not have any automatic rights to ownership of each other’s property upon relationship breakdown. The onus is on the party making the claim to prove that they have a legal and beneficial interest in the property in dispute.

If there are disputes concerning cohabitants and their joint children, this is dealt with under s.8 of the Children Act 1989. If there are financial disputes concerning children these could be dealt with by the Child Maintenance Service, and in some circumstances Schedule 1 of the Children’s Act 1989. 

Is the law about to be reformed like the Divorce Law?

The current law regarding cohabitation can be complex, and in some cases costly.

The Women and Equalities Committee’s Report on ‘The right of cohabitating partners’ (2022) highlights the risks faced by those in these relationships. The report recommends that the government goes on to launch a public information campaign; highlighting the differences between marriage, civil partnership and cohabitation and an ‘opt out’ cohabitation scheme. The scheme would propose that cohabitation is defined and that parties can opt out of applying the current law that they have applied. 

What can I do to protect myself?

Some cohabitants chose to enter into a cohabitation agreement, this agreement is not legally binding, however acts as a useful tool in minimising any disputes in the event of separation. If drafted and executed correctly it can be used as evidence to show what the parties’ intentions were in the event of a dispute.

Jordans Solicitors – offering Family Law advice

If you would like to discuss cohabitation agreements further, please do not hesitate to contact the Family Law department here at Jordans Solicitors.

Call our offices on 01924 387110 and speak to a member of the Family law team who will be more than happy to help.