Myth of common law marriage ‘puts cohabitants at risk’

Six out of ten MPs believe the law needs to be changed to give unmarried couples more legal protection if they separate.

A survey carried out by the family law group, Resolution, found that 69% of MPs agree that the public have a mistaken belief in the “myth of common law marriage”. This misconception leads many cohabiting couples to think they have the same legal rights as married couples.

It’s a misconception that all too often leads to heartache.

It could be that someone lives with their partner for 20 years yet ends up homeless and penniless when the relationship breaks up. Or they may find they lose out because their partner dies without making a will and the estate they helped to pay for and expected to inherit is instead divided up between family members they hardly know.

Women have no automatic right to maintenance from their partner, even if they stayed at home for years to look after their children. Men may find it difficult to recover money they spent on a home in their partner’s name.

With marriage there is an automatic presumption that both partners are equal irrespective of their differing contributions. Unless there are special circumstances, assets and wealth are divided equally when a couple divorce. With co-habiting couples there is no such presumption no matter how long they live together.

A spokesman for Resolution said: “This isn’t about whether you believe people should be married or not, this is about ensuring that people are aware of their legal rights – and the fact that more than two thirds of MPs identify this as a problem clearly points to the need for reform.

“Despite the myth that there is such a thing as “common law” marriage – which hasn’t existed since 1753 – it is possible to live together with someone for decades and even to have children together, and then simply walk away without taking any responsibility for a former partner’s welfare. That is simply wrong, it needs to change, and it needs to change now.”

The Liberal Party has agreed to push for greater rights for unmarried couples but it’s uncertain whether any changes will take place. The government has rejected such calls in the past because of fears that it would devalue the status of marriage.

In the absence of any new legislation, many couples protect themselves by drawing up living together agreements which state in advance how their assets should be divided if their relationship fails. A few years ago the government started a campaign urging couples to draw up such agreements to cover things like finances, property and pensions.  

The agreements are a little unusual in that they are not legally binding but they will be recognised by the courts and taken into account as long as they produce a fair settlement for both sides.

Please contact Shelley Rolfe or Paul Owen if you would like more information about the issues raised in this article or any aspect of family law.