The only correct answer is no: “common law marriage” hasn’t existed since the
eighteenth century (if it even did before then).
Despite this, more and more people are choosing to live together without getting married or entering a civil partnership. In 2013, official figures indicated that over 2.9m unmarried couples were cohabiting in the UK. However, the law hasn’t caught up with the evolving nature of relationships in our society. Public perception isn’t in line with the law either – a recent survey
of MPs found that 7 out of 10 were aware of cases local to them where one of their constituents had falsely believed in (and relied upon) the idea of “common law marriage”.
People still believe that long-term relationships afford them some protection should that relationship come to an end. This has been the position for some
time, especially since cultural changes in the 1960s and 1970s made it more
acceptable to live with a partner without marriage. With this in mind, the Law
Commission (an independent body of the government which advises on law reform) was asked almost 10 years ago to look at the law that applies to unmarried cohabiting couples. In particular, they were asked to advise on the position for cohabitants when a relationship ends.
The conclusions reached by the Law Commission were that cohabitants should
not be given the same rights as married couples and civil partners on separation, but that those who had children together or had been living together for a longer period (the minimum recommended by the Commission was 2-5 years) should have some financial remedies available to them. There would be an opt-out available for couples who wished to do so.
But, despite the proposals being praised by the last Government, the law remains unchanged. Lobbying by interested groups, such as Resolution (the association of family lawyers), continues, but, so far, there are no indications of the policy changes needed to bring the law in line with the reality of society. The position remains that neither partner has a claim against the other if the relationship breaks down (except under property law, where the courts do not have the same discretion to reallocate assets, as can occur on divorce).
Likewise, if you die without having made provision in your Will for your partner, he or she may have a costly legal battle to obtain the necessary financial support from the assets which you leave behind. If you have been together over 2 years and your partner has been dependent on you in any way, even without a will they may be entitled to a share of your estate.
For the almost three million unmarried couples in the UK, there are a number
of genuine reasons not to marry – a previous acrimonious divorce, to name but
one – but if couples want greater protection without tying the knot, then they should consider entering into a cohabitation or “living together” agreement. This is the only protection available at the present time. Once signed, if they separate or should one partner die, the agreement will give each party greater rights and put them in a far better legal position. Whilst partners may dislike the idea of planning for the demise of their relationship, such an agreement will save subsequent cost, misunderstanding and distress. We can advise on the best type of cohabitation agreement for you, and create an agreement which is bespoke to your circumstances.
If you would like advice in respect of the issues discussed above, or to find out more, please contact Helen Fisher at our Woking office firstname.lastname@example.org
Thanks to my colleague Helen for permission to post her article.