Cohabitation rights: the “common law marriage” myth and its wider family impacts

One of the biggest misconceptions in family law is that a ‘common law marriage’ exists in England and Wales. With one in eight people aged over sixteen now living together without being married or in a civil partnership, cohabiting couples are the fastest-growing family type. But the law lags far behind societal changes in terms of legal protections for these couples following separation or bereavement.

Unmarried couples and property rights

Legal ownership is the starting point for determining property rights. It is difficult to assert an interest in property if you are not the legal owner. However, the lack of legal title does not make it impossible for cohabitees to make a claim.

The rights of cohabiting couples form one of many challenges around keeping family property or businesses (particularly farming businesses) in the family upon relationship breakdown or divorce – particularly if the younger generation have been living in a family property with their partner. Promises that “this is our house”, or financial contributions made by the non-owning party towards renovations or improvements can stand as evidence to establish an interest in property in certain circumstances. Resolving such disputes is often costly and time-consuming, causing upset and worry to the whole family.

Conversely, if property is held in joint names, the presumption is that each owner holds equally, even if one owner has made a much larger financial contribution towards its purchase. I regularly see instances where the “bank of mum and dad” or even grandparents have assisted with property purchases for adult children and their partners.

The position is slightly different in cases involving children, but unmarried couples still have far fewer rights than those who have married.   

Options for unmarried couples

A cohabitation agreement can provide certainty and the security of knowing where the parties stand in the event of relationship breakdown. The agreement sets out the cohabiting couple’s intentions and records each party’s rights in relation to property, bank accounts, and financial contributions. It will also identify who owns the property and whether contributions made by a cohabitee will result in them acquiring an interest in the property at a later date.

This area of law is complex and it is important that legal advice is obtained at the earliest opportunity. All the lawyers at Silk Family Law are family law specialists, many of whom regularly deal with complex assets and farming or land and trust rights issues.

For more advice and guidance on divorce during Covid19 and generally, please contact Silk Family Law on 01748 900 888 or visit www.silkfamilylaw.co.uk.

This article, written by Silk Family Law partner and co-founder, Margaret Simpson, first appeared in the Yorkshire Post ‘Country Week’ on 5 December 2020.

Image credits: Chewy (top image) and Tierra Mallorca (second image) on Unsplash.