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The “Common Law Marriage myth”

December 14th, 2018

Cohabitation is the fastest growing family form having more than doubled from 1.5 million families in 1996 to 3.3 million in 2017. Alongside this the number of dependent children living in this type of family reached 15% in 2017. Despite the increasing prevalence of this type of family, two-thirds of cohabitants believe that their relationship is a type of common law marriage, whereby living with someone for a while, you acquire rights comparable to those of a married couple.

Unfortunately, as discovered by Mrs Burns, this is largely false. In this case (despite living with her partner for 18 years and having three children with him) Mrs Burns found herself without a legal safety net when her partner was able to kick her out of the house, leaving her with no entitlement to any assets or to the house that she had lived in for nearly two decades.

Worryingly, the fact remains that many cohabitants have no knowledge of their legal rights often until it’s too late, finding themselves without a remedy in the family courts upon the breakdown of their relationship. I would argue that if the government is not prepared to offer equal protection to cohabiting couples, that they should at least take the necessary steps needed to ensure people in unmarried relationships are aware that their protection is much more limited upon the breakdown of their relationship or death of their partner.

So, what are your legal rights if you cohabit?

The key difference for cohabitants is that, unlike married couples and civil partners, on the breakdown of their relationship there is no duty to provide each other with financial provision. Therefore, they also have no right to apply to the family court where the judges have the jurisdiction to distribute the parties’ financial and property assets. Instead cohabitants have to rely on the principles of property and contract law. Under these laws, the outcome may be more uncertain, and the parties will have to navigate complex and rigid doctrines such as trusts, which focus more on the intention of the parties, instead of being based on fairness with present and future needs of the parties in mind, making dependent cohabitants especially vulnerable when the relationship ends.

Most worryingly and draconian for the cohabitant that has no proprietary interest in the home, is the fact that they have no statutory right of occupation to the family home (also known as “home rights”). Therefore, after the breakdown of the relationship, the party only has the right to be in that property if they have a right of ownership or if their ex-partner grants them a licence to live there.

Cohabitants can also be left vulnerable on the death of their partner. There is no automatic right of succession and although they may be able to apply for financial provisions from their partner’s estate under the Inheritance Act 1975, they have to make an application and may not be treated as favourably as applications by spouses and civil partners.

There are signs of change coming, though.  The Supreme Court case which heard the application made by Denise Brewster for Judicial Review was allowed, entitling her as a cohabitant to her deceased partner’s pension under a local government pension scheme. Under this Scheme Ms Brewster had to be nominated by her partner to be eligible, however she had not been nominated, and even more unfair was the fact that surviving spouses and civil partners were not subject to the same requirement. Additionally, in the case of Re McLaughlin’s application for Judicial Review (Northern Ireland), under social security law, if a parent dies with children under 18, only surviving married spouses can get payment on account of being a widowed partner. However, Mr McLaughlin was able to successfully argue that this was a breach of Article 8 and 14 ECHR to deny this benefit to cohabitants.

Cohabitation is a complex area of law.  For assistance, call and talk to one of our lawyers for a chat through your circumstances.

 


 

Written by

Jake Van Kampen, Guest Blogger

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  • Talk To One Of Our Legal Experts

    01908 262680

    enquiries@hawkinsfamilylaw.co.uk

    enquiries@hawkinsfamilylaw.co.uk

    Talk To One Of Our Legal Experts

    01908 262680

    enquiries@hawkinsfamilylaw.co.uk

    enquiries@hawkinsfamilylaw.co.uk

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