Rewriting the common law marriage myth
By Elaine Guy of Carter Bells, family law specialist
There is one phrase that I’d like to abolish: ‘common law marriage’. It sounds reassuring, it feels logical, but in England and Wales it is a myth that continues to leave couples dangerously exposed.
For years, family lawyers have warned that the law has failed to keep pace with the way many people now live. So, we all welcome the announcement by the government of a consultation that could finally mark a step towards greater protection for couples who share their lives together, but choose not to marry.
The current law is more than fifty years old and was created at a time when expectations around marriage, relationships and family life looked very different. Today, millions of couples live together without marrying, yet one of the most persistent misconceptions remains the belief that, after a certain length of time they have a ‘common law marriage’ and gain legal rights like married couples.
They do not. And sadly, many people only discover this when it is already too late.
Because in England and Wales, cohabiting couples have no automatic right to share a partner’s assets on separation.
They have no automatic inheritance rights if their partner dies without a will.
And nor do unmarried partners benefit from the inheritance tax exemption that allows married or civil partnership couples to pass assets to a surviving partner.
That can be devastating for someone who learns that although they have built homes, raised children and shared their lives together over many years, it counted for nothing in the eyes of the law.
This step towards reform, bringing the legal framework closer to the reality of modern family life, is long overdue.
The data shows the trend. Latest figures from the Office for National Statistics (ONS) show that cohabiting couples are the fastest-growing family type in the UK.
Currently there are an estimated 6.5 million people cohabiting outside of marriage or civil partnerships. And while married couples remain the most common family structure, their numbers are falling while, as a proportion of the population, cohabiting couples have increased from 11.9% to 12.9% in just the last year.
And it is most popular among younger couples, who are represent some 18% for those cohabiting under 30, and 15% at ages 30 to 44, meaning more and more families are being formed outside the structure of marriage.
The consultation is a recognition that these millions of people now choose to cohabit rather than marry, and that the law needs to provide them with greater protection.
Certainly, we need to see reform around financial claims when couples separate, as well as giving greater rights in long-standing relationships where a partner dies without a valid will.
But while I’m glad to hear that consultation is finally underway, this is only the beginning of what is likely to be a lengthy process. There is no guarantee of when – or in what form – we can expect to see any changes become law, not least with yet another prime minister installed in number ten, and the potential shift in emphasis in the legislative agenda.
So, for now, my advice to couples is simple: don’t wait for the law to catch up before protecting yourselves.
The safest approach is not to cross fingers in hope of change but instead take a myth-busting approach to put solid, practical protections in place, now.
These are the four conversations I encourage every cohabiting couple to have. They cover the most important points, and can provide certainty, avoid unnecessary conflict later, and make sure that arrangements reflect your joint wishes, rather than relying on a legal system that is still catching up.
- Make a Will. Unlike married couples and civil partners, cohabiting partners do not automatically inherit from each other if one dies without a will. A properly drafted and clear expression of wishes can help avoid a lot of distress at one of the most difficult times.
- Consider a cohabitation agreement. This can set out how finances, property and responsibilities will be dealt with, both during the relationship and what should happen if it breaks down. It helps to identify grey areas and should help avoid any later disputes, whether it’s over who should walk the dog or who contributes what financially.
- Clarify property ownership. For couples buying a home together, a declaration of trust can record each person’s share of the property and avoid uncertainty later, particularly where contributions are unequal. Or if one person has moved into a property owned by the other, this can set out what any contribution to property costs covers, to avoid any later confusion or disagreement.
- Think very carefully about children and future responsibilities. This should include issues such as parental responsibility, financial support and arrangements for children if the relationship ends. This should include any children from previous relationships, as the number of blended families is also growing, with children in stepfamilies 3.5 times more likely to live with a cohabiting couple.
Some of those conversations may feel tough ones to kickstart with your partner, and, if so, why not seek out some independent input, with someone to help start the conversation. What seems a tricky topic now will be much harder if the worst happens.
Carter Bells