The myth of the ‘common law marriage’ refers to the idea that the law grants cohabiting couples in stable relationships a legal status and resultant rights similar to that conferred by marriage. In fact, cohabitation gives no legal status to a couple and ‘common law relationships’ are not legally recognised in England and Wales. A 2013 study showed that 47% of people believed in the myth of the common law marriage. The continuing prevalence of this belief coexists uneasily with the steady increase in the number of couples choosing to cohabit, with Office of National Statistics data showing that the number of opposite sex cohabiting couples has increased from 1.5 million in 1996 to 2.9 million in 2013. The number of same sex cohabiting couples has increased from 16,000 to 89,000 in the same time period.
A significant part of the common law marriage myth is the misconception that separating cohabiting couples have rights broadly equivalent to divorcing couples, who are able to make financial claims on their partner’s property and assets. In the case of divorcing spouses, the court has the broad power under the Matrimonial Causes Act 1973 to redistribute the couple’s property and finances to ensure that the needs of all parties are met. In contrast, when a cohabiting couple’s relationship comes to an end, the court’s powers to intervene are limited to occasions where the couple have entered into a legally binding written agreement setting out their respective rights should the relationship break down. In exceptional circumstances the court may also make orders where it finds that one party, whilst not having legal ownership of a property, has nevertheless acquired a beneficial or equitable interest in the property. Similarly, the court may find that a party may have a greater share than the other party where the property is held in joint legal names. In most cases then, when a cohabiting couple’s relationship comes to an end, they have no right against the property or finances of the other party. Therefore, where a property, most commonly the family home, is held in one party’s sole name in most cases the other party will be left without right to seek a share of that property. Similarly, a partner in a cohabiting couple who has given up their career to care for the couple’s children will be left without recourse to spousal maintenance on the breakdown of the relationship.
In 2007 the Law Commission published a report recommending the introduction of a new scheme of financial remedies for cohabitants on separation based on the contributions made by the parties to the relationships. These recommendations were not acted on however, as both the previous government and the present coalition government indicated that they did not wish to take forward the Law Commission’s recommendations and legislate for cohabiting couples. However, legislation relating to the rights of cohabiting couples has recently reached Parliament through the private member’s bill of the Liberal Democrat peer Lord Marks, whose Cohabitation Bill has now reached the committee stage in Parliament. Couples who have have lived together as a couple for a continuous period of two years or more, as well as couples who are the parents of a child, will be treated as cohabitants under the provisions of the bill. Lord Marks’ draft bill broadly follows the approach recommended by the Law Commission and sets out that where a member of a cohabiting couple can demonstrate that they have made ‘qualifying contributions’ (which may be financial contributions or contributions in care or in kind) from which the other party has derived and retained a benefit, or which would cause the contributing party to suffer ‘an economic disadvantage’, the court would be able to intervene to award a financial settlement.
The family law association Resolution argue that Lord Marks’ bill does not go far enough and that a cohabiting couple should have rights equivalent to those afforded to a divorcing couple on the breakdown of their relationship. However, the bill has met opposition in Parliament, with Baroness Deech arguing that Lord Marks’ bill is an is an attack on the liberty of two people who have refrained from marrying.
Lord Marks’ cohabitation bill is currently at the committee stage, and it is thought that a lack of government support for legislating on the issue of the rights of cohabitants will mean that it will not progress further, despite the fact that the 2008 British Social Attitudes survey showed that nine out of 10 people believed that cohabitants ought to have redress on the breakdown of their relationship where the couple have children or where career sacrifice is involved.
Without a formal Cohabitation Agreement, cohabiting couples remain without the legal rights that many assume they have and may find that the law does not protect either partner on the breakdown of their relationship.