Despite warnings, many people still at risk from ‘common law’ marriage

Nearly half the people in England and Wales still believe in ‘common law’ marriage, with many cohabiting couples unaware of the risks they run if their relationship breaks down.

A survey carried out by the National Centre for Social Research and Exeter University found that only four out of 10 people realised that cohabitation does not automatically confer the same legal rights as marriage.

Ironically, the confusion was even higher among cohabiting couples with children, with more than half believing that common law marriage existed and gave them legal protection.

Unfortunately, this is not the case. Under current law it’s possible to live with someone for decades and even have children together and then simply walk away without taking any responsibility for a former partner if the relationship breaks down.

This has led many lawyers and campaigners to demand more rights for cohabiting couples but so far, the government has refused to act.

In the absence of any automatic legal protection, many couples draw up living together agreements that 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.

Ownership of the family home is one of the most important issues. If it is in just one person’s name, then the other partner could lose out. You may want to consider owning it as joint tenants or tenants in common which will make a huge difference to your rights.

If you don’t already have a will then you should draw one up as soon as possible. Otherwise your estate could pass to your relatives rather than your partner.

Unmarried fathers don’t automatically have parental responsibility for their children, but they can acquire it with the agreement of the mother or by applying to a court. It is clearly better to deal with the matter while your relationship is strong rather than wait until after it has broken down.

Some people may feel embarrassed at first to be making such legal arrangements as it seems that they don’t fully trust each other. However, such concerns soon disappear, and most couples end up feeling their relationship is stronger because both partners feel more secure.

Anne Barlow, a law professor at Exeter University, said: “Cohabiting couples now account for the fastest growing type of household and the number of opposite-sex cohabiting couple families with dependent children has more than doubled in the last decade.

“Yet while people’s attitudes towards marriage and cohabitation have shifted, policy has failed to keep up with the times. The result is often severe financial hardship for the more vulnerable party in the event of separation, such as women who have interrupted their career to raise children.

“Therefore, it’s absolutely crucial that we raise awareness of the difference between cohabitation, civil partnership and marriage and any differences in rights that come with each.”

Please contact Manisha Raja or Shelley Rolfe if you would like more information about living together agreements or any aspect of family law.