Myths of the Common Law Marriage and the need for reform

It was good to hear Sir James Munby speaking out on the rights of unmarried couples on 24 September. This area of law has been ignored for too long and is still surrounded by myths.

Separating cohabitees have no all-encompassing statute they can use in an application to the Court if they cannot settle matters. This contrasts significantly with the Matrimonial Causes Act 1973 which, under Section 25, provides the criteria for the Court to consider when dividing assets on divorce.

If cohabitees jointly own a property they may or may not have a Declaration of Trust setting out their respective shares. If not this can lead to protracted arguments on who contributed what and the need for detailed, and therefore costly, evidence on past payment which could go back 20 years. It is even harder if the property isn’t in joint names.

In a long relationship, one party may have paid the mortgage but the other may have bought all of the shopping. This will make a very big difference to the division of proceeds. How does paying £10,000 toward the extension compare with doing the painting and laying the tiles? Clients may say, but I’ve looked after the children, or the home, or supported my partner with his business and given up my career. Another myth. This won’t may any difference in the Civil Court. It is all about who paid.

Even arguments about furniture and possessions will come down to who bought them and are their receipts. If one person buys the antique bureau and the other pays for a holiday the bureau belongs to the purchaser and there will be no adjustment.

For a married couple, it would simply be the matrimonial home with a starting point of equal division regardless of whose name it was held in. If a Husband tries to exclude his Wife from a property that was in his name, she can immediately register Matrimonial Homes Rights to continue living there. A cohabitee has no such rights.

“But we’ve been together for 20 years and I thought I acquired rights after all this time”. Sadly another myth. Time changes nothing for cohabitees. Many cohabitees still think that just by the length of time they have been together they have acquired some rights. There is no right to maintenance for the cohabitee for any period at all, even if decisions have been made that one parent gives up a job in reliance on the other providing financial support.

It is possible to make claims, if there are minor children, under Schedule 1 of the Children Act 1989. However, all such claims come to an end when the children reach 18. A cohabitee may, therefore, have the right to live in a property but only until the children grow up and will not acquire any share in the property.

Co-habitation is increasing and it is absolutely time for there to be a law for cohabitees. The question then is should cohabitees have to opt in or opt out. Co-habitees may say that if they had wanted to be legally bound they would have got married. However, there was a lot of resistance when the Child Support Agency was formed that fathers were now being forced to pay for their children. Now it is accepted that fathering a child creates legally enforceable responsibility. Similarly, therefore, once a co-habiting couple have children I consider that they should have legally enforceable responsibility toward the other parent. Should they be able to opt out? Possibly. However, this could have similar requirements to a Pre-Nuptial Agreement that they have to obtain independent legal advice and if they have not taken the appropriate steps to opt out they would be bound by the new law.

In ongoing relationships wills can be made to protect cohabitees on death, and recent court decisions have given cohabitees rights to pensions. However, this doesn’t address financial provision on the ending of a relationship.

Reform should address co-habitation when children are born. If there are no children the parties can be reasonably expected to make their own decisions and look after their own interest. However, once there are children, practical decisions will be made as to who will retain a career, who will be the breadwinner, and who will look after the children. There needs to be legislation to protect the party in a vulnerable financial position. 

CONTACT MARILYN

If you would like more information or advice relating to this article or a Family law matter, please do not hesitate to contact Marilyn Bell on 01727 798009. 

© SA LAW 2018

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