Do people still believe that “common law marriage exists”?

Do people still believe that “common law marriage exists”?

Worryingly, the answer is yes. Research from the British Social Attitudes Study indicates that 46% of those surveyed wrongly thought that "common law marriage" exists and that cohabiting couples have the same rights as married couples. This is despite campaigns and high profile coverage about the difficulties that unmarried couples can face on separation. The same survey was conducted in 2005 and the statistics largely remain unchanged. In that survey, 47% of people thought that "common law marriage" existed.

Many couples believe that you require rights after living together for a number of years or if you have children. This is simply not the case and it dangerous to assume that you do! There can sometimes be devastating consequences if a couple do decide to separate. Not knowing your rights – or lack of rights – can be costly.

As the current law stands, it is possible to live with someone for decades, have children with them and then not take responsibility for the former partner when the relationship breaks down. Is this fair? In the most severe cases, a former partner can become poverty stricken whilst also losing the family home.

There has been widespread debate as to whether cohabiting couples should acquire legal rights and there are arguments on both sides.

Cohabiting couples are the fastest growing family type in the UK today and this is likely to continue to increase in the future. Couples are choosing to live together, rather than marrying or entering into a civil partnership. Society is changing and some argue that the law needs to adapt to this.

The Cohabitation Rights Bill is sluggishly making its way through parliament which hopes to address some of the discrepancies and could result in radical changes to the law for cohabitees. Parliament is somewhat pre-occupied at the moment with Brexit so it may be some months before anything is put into motion – what this space!

Why does this myth persist?

Despite campaigns over the years to try and raise public awareness the myth persists but why is this?

One of the reasons may be the influence from other countries around the world. There are some places where it is, or was possible to have an arrangement that has some or all of the hallmarks of a "common law marriage".

The misconception has also gone viral. You can bet your bottom dollar that those who believe "common law marriage" exists have told their friends and family further entrenching people's views.

People seem to be receptive to the idea. It is an exciting time for a couple when they start living together. They don't necessarily want to think about what would happen if they decided to separate later on down the line or one of them were to die. Maybe there is some comfort in believing in the myth. That comfort soon goes when a former partner (usually the more financially vulnerable) realises the reality of the situation.

Certain industries also exacerbate the problem. One thing that is seen time and time again is the term "common law partner". It often comes up in the car insurance context when adding a named driver and you get a drop down of options to record the persons relationship to you.

Again, adding to the misconception that common law partnerships are a "thing". It also makes you wonder what bearing (if any) this actually has on the policy.

There is also no consistency with the treatment of unmarried couples. For example, the DWP treats married and unmarried couples the same for the purposes of unemployment benefit but not for the purposes of bereavement payments and widowed parents allowances. For tax purposes, HMRC treat married and unmarried couples very differently. All of this adds to the confusion within the wider public. Some public bodies seem to recognise the cohabiting couple's relationship but there is no general recognition within the law.

Over the years, there have been various attempts to try and "de-bunk" the myth and raise greater public awareness about the issues. It is questionable about how successful these have been but when you look at just of some of the factors at play in keeping the myth alive you can quickly see why it has persisted for so long and why it has been so difficult to change.

Why does this matter?

The problem is that currently there is no law on cohabitation. When a cohabiting couple's relationship breaks down, the law treats each of them as two unrelated individuals. In practice, this means that no account is taken of the financial contribution or other contributions that each of them may have made in order to determine what is fair on their separation or when one of them dies. This means that the more financially vulnerable party may potential face hardship and difficulties. The Courts have no powers to redistribute the wealth of cohabiting couples on separation regardless of how long they have been together.

Cohabiting couples may have some rights if they jointly own property or can show that they have an interest in a property but this is very much case and fact specific. If the couple have a child together then it may be possible to apply for financial provisions for the child but again this is case and fact dependant. These types of actions are often complex, time consuming and expensive.

There can also be issues if a cohabitee were to die without a Will. That person would be deemed to die intestate and their estate would be distributed in accordance with the Intestacy Rules. These can be arbitrary and crucially cohabitees do not inherit under the rules. It does not matter whether you have been together for 50 years or 5 minutes or if you have children together. A surviving cohabitee may be able to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975 if no provision, or reasonable financial provision has been made, but again cohabitees are not treated in the same way as spouses and there is the time, stress and expense to consider in pursing this.

So what can we do? Is reform needed?

It is possible for cohabitees to protect themselves if they don't want to marry but they have to do this of their own volition. They could enter into a cohabitation agreement setting out how they will share the finances when living together or what happens if they split up. These are bespoke agreements and can be tailored to the couple's individual's needs.

If couples jointly own property then they need to consider how they are going to own that property and may want to think about entering into a Declaration of Trust. They also need to think about Wills and Lasting Powers of Attorney's.

Living together should be considered as a significant life event and it is important that couples take steps to plan for the future and to ensure that they are both adequately protected if the worst were to happen. It also can give the couple piece of mind.

Some commentators argue that due to the lack of receptivity amongst cohabitants the only way to tackle this issue is to legislate, giving cohabitees automatic legal rights when their relationship meets certain criteria with an opt-out system for those who do not want to acquire legal rights and would rather have an informal cohabiting relationship.

But is legislation really necessary? If cohabitees want to protect themselves then they have devices to do so. They can enter into a cohabitation agreement, get married or enter into a civil partnership. Maybe the real problem stems from the "myth" and that the majority of people still believe that cohabitees have rights when they don't! Is it a question of educating or legislating? If people were aware of the lack of rights would they be more likely to protect themselves? What do you think?

At Clapham & Collinge we have a dedicated team of experts who are able to provide you with all of the necessary information, support and legal advice on cohabiting couples and Family Law,

If you have a legal query please contact our Client Relations Team on 01603 693500 or email us using 'Make an enquiry' form. Appointments available at our Norwich, North Walsham and Sheringham offices.

*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.