Cohabitation and the “common law marriage” myth
January 23, 2008 12 comments
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.