Cohabitation and the “common law marriage” myth

It is worrying that so few cohabitants have taken steps to safeguard their positions.

Cohabitation remains a popular choice of relationship in Britain. More than one third of people (36 per cent) have cohabited in the past, and one in nine (11 per cent) do so at present.

Unfortunately, my office is frequently consulted by an increasing number of cohabitants who have learned, to their great shock, that they have no legal remedy following the breakdown of their relationships.

In the midst of separation, a cohabiting couple experiences the same emotional turmoil as a married couple going through a divorce. Even so, there is little – if anything – that the law can do for them.

Gay couples entering into Civil Partnerships have the same rights as married couples. However, heterosexual couples who choose not to marry, or who may not be able to marry, have no automatic rights in law.

Four years ago, the government launched a high-profile media campaign to raise awareness about this. Unfortunately, a new report has revealed that many in the UK remain confused about the legal consequences of living together outside of marriage.

The latest British Social Attitudes study, published by the National Centre for Social Research, shows that more than half of adults (51 per cent) still hold the mistaken belief that there is such a thing as “common law marriage”‘, which gives cohabitants the same rights as married couples.

The other findings include:

  • Four out of ten of us (38 per cent) know that “common law marriages” have no legal status. However, this figure has barely risen since 2000 – and it would appear that the government’s publicity efforts have had little success.
  • Cohabitants are no more knowledgeable than others. Fifty-three per cent believe that common law marriage exists. Just 39 per cent know that it does not.

Most worrying of all, few cohabitants have taken steps to safeguard their positions:

  • Just one in six (15 per cent) of those who own their homes have a written agreement about their share in the ownership.
  • Just one in five (19 per cent) have sought advice about their legal position.

The report also suggests that there is strong public support for legal reform so that in certain circumstances, cohabiting couples would be treated the same as married couples.

  • Nine out of ten people (89 per cent) believe that a cohabiting partner should have a right to financial provision on separation if the relationship has been long-term, includes children and has involved prioritising one partner’s career over another.
  • Four out of ten people (38%) believe that a cohabiting partner should have a right to financial provision if the relationship only lasted two years and involves no children.

Anne Barlow, a professor of law at the University of Exeter and a co-author of the study, has concluded: “There is little appetite for maintaining the deep legal divisions drawn between married and unmarried cohabiting families. The Law Commission should bear this in mind in their review of current legislation.”

As one of the members of the Advisory Group to the Law Commission, I wholeheartedly agree with Professor Barlow. The Law Commission – an independent body set up by Parliament to review and recommend reform of the law in England and Wales – has been asked to consider this subject and has already submitted a sensible report to the government.

In its report, the Law Commission does not equate cohabitation with marriage, but proposes a system of compensation to cohabitants who have suffered economic loss as a result of the relationship. The proposals address the issue of economic imbalance – for example, if one cohabiting partner had given up work to care for the couple’s children.

This approach is sensitive to those who believe that marriage is something more than cohabitation, yet remedies the substantial injustices that are prevalent at present.

I only hope the government has the stomach for what will undoubtedly be a rough ride through Parliament and in the media, as cohabitation is fair game for those who like to bang their drums and ignore reality. There is no point pretending that cohabitation does not exist. It does, and it affects many millions of people here in the UK. The sooner we have some good laws in place, the better.

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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11 comments

sally - February 1, 2008 at 11:00am

People do not realise that the marriage certificate is so much more than a piece of paper. It is documented proof that- at some point- the couple declared their intention to commit to one another in front of witnesses. If a cohabiting relationship breaks down, if it suits them one of the cohabitees can claim that they were just very good friends living under one roof. OK if they have children together this argument may seem a little strained. But if they have no children then they could very well have been just good friends. There is no legal definition of what cohabitation means. Having that marriage certificiate is very, very important. Frankly, those that believe it is “just a piece of paper” are fools I learnt this through bitter experience- for 10 years ago I was one of those fools. I will never make that mistake again.

rameshraju - June 18, 2008 at 8:20am

Co-habitation is a form of prostitution. Co-habitation is highly fragile relationship between man and a woman. Co-habitation lacks commitment. Blood relationship is very weak in co-habitation. Co-habitation cannot build healthy society or healthy family system. Co-habitation is just like room mates living in a room. Children are the sufferers in co-habitation. Co-habitaion is the tradition designed by the devil. Sexual relationships are weaker in co-habitation. Co-habitation should be considered as a crime or illegal one by the court of law. Divorce cases are mostly found in Co-habitation. Cohabitation is the result of birth of individualism in men and women. Co-habitation leads to many disasters in human society. Cohabitation is an unsecured one, even more than marriage system. Marriage system is always secured more than co-habitation.

Ramesh Raju - June 21, 2008 at 6:50am

Co-habitation is a form of high-tech ADULTERY. Co-habitation is highly fragile relationship between man and a woman. Co-habitation lacks commitment. Blood relationship is very weak in co-habitation. Co-habitation cannot build healthy society or healthy family system. It ruins the actual family system. Co-habitation is just like room mates living in a room. Children are the ultimate sufferers in co-habitation. Co-habitaion is the tradition designed by the devil of individualism. Sexual relationships are weaker in co-habitation. Co-habitation should be considered as a crime or illegal one by the court of law. Divorce cases are mostly found in Co-habitation. Cohabitation is the result of birth of individualism in men and women. Co-habitation leads to many disasters in human society. Cohabitation is an unsecured one, even more than marriage system. Marriage system is always secured more than co-habitation. It is pity that Bharatmata is being gang-raped by some IT professionals in the name of co-habitation, pub culture, immodest fashion, dating etc.

Rebecca - November 9, 2008 at 2:11pm

What people seem to be forgetting in their drive to put cohabitation on the same legal footing as marriage, is that many people do not marry for a reason! They don’t want to have legal and financial responsibilities to their partner.

If people want this kind of arrangement then marriage is there, if not then they opt out of that and remain cohabiting.

If the government closes this gap, then where is the freedom of choice?

Sara - December 16, 2008 at 3:37pm

I think this is a dilemma for womenkind. Ultimately it is the women who falls in love with man who does not want to commit to marriage. Men like this are presently protected from being reasonably responsible for the women they have enjoyed spending their time with, most of these women lack the independence, emotionally, economically or socially to walk away or hold back until a real gentleman who truthfully wants to commit to them comes along. I fully support any attempt by the government to encourage couples to marry legally and they need to educate the masses, meanwhile the children and/or old ladies who are the loosers in the vaccum created by co-habiting must be protected and not victimized further. Also, I read that religious marriage ceremonies are not necessarily accepted as proof of being legally married. I came across a woman who was subjected to a marriage scam. Again, we need to protect women from this kind of circumstance by acknowledging religious marriage ceremonies as legal when couples participating and were resonably aware of what they were doing.

Fred - August 8, 2010 at 11:40am

RameshRaju – I cohabit. You are entirely wrong on SO MANY levels. I wonder how you manage to get so many things wrong in a single paragraph!

I am degree-qualified, do not have any religious hang-ups (like you appear to have) and am totally and utterly devoted, faithful and honest with my fiancé.

You need to stop listening to other people’s ideology (i.e. your belief system)and start to form your own OBJECTIVE opinions based on experience!

Anne - August 17, 2010 at 4:59pm

RameshRaju- How dare you presume to stereotype everyone and put all who cohabit into one box?!

Thank god that other people feel proud to express individualism and live life as they choose to do so.

I think you are sheltered, ignorant, narrow minded and need to look outside of your tunnel vision.

You make marriage sound like prison, no wonder people choose to cohabit instead!

I cohabit with my partner of 8 years, we have never been unfaithful and intend to marry and have children….BUT…..we shall only do this when its right for us and NOT because its expected of us by other people with outdated views and off the wall opinions!

Go judge your own life and keep your opinions of others that isnt living life by your standards to yourself!

Sharmain - October 28, 2010 at 7:04pm

Yes, Sara, you are right in much of what you say.
I am a woman co-habiting with a man for the past 15 years. We have a ten year old child together, whom I gave up work to raise. My partner has never wanted to get married, which was ok with me, as i imagined we would always be together. But throughout most of our relationship he has had a roaving eye, and has met women behind my back. No wonder he didn’t want to get married! Our relationship has worsened the last couple of years because he wants us to have an open relationship…. I have no money, and as a “shop girl” (as I was) I wouldn’t be able to earn enough money to keep my head above water if I left him.

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