Did you know that the number of couples who are cohabiting is increasing at a rapid rate? Statistics reveal that there are now over 6 million people who are cohabiting in England and Wales alone.

Cohabitation is defined as a person living with their partner without being married or in a civil partnership. Many people mistakenly believe that when they are living with their partner, they are “common law spouses” and this would grant them similar rights to those who are actually married. But it’s important to remember that this is not the case.

A survey conducted in 2013 revealed that 69% of MPs agreed that there is a mistaken belief that common law marriage exists. However, common law marriage has not existed in England and Wales since 1753. A survey conducted in 2008 found that 51% of people believed that cohabitants have the same rights as married couples. This is completely untrue. Cohabitees are currently afforded very little legal protection on separation or on the death of one partner, regardless of whether or not they have had children together.

Resolution, the body representing family law professionals in England and Wales, continue to campaign for legal rights for cohabiting couples. Their manifesto produced in February 2015 asks for cohabitees to be granted the right to apply for certain financial orders if they separate. These orders would be similar to the current orders available on divorce, although they would be more limited. Resolution have also suggested that couples should have the option to opt out of these rights.

Many other countries have provisions for protecting cohabiting couples, including Australia, Canada, Scotland and Northern Ireland. In Scotland, cohabitees are able to make claims against each other upon separation or death of the other. These claims are more limited than those claims available to married couples, however it is a step in the right direction and certainly affords more protection than in England and Wales.

The Commons Library has recently produced a paper highlighting the current position for cohabiting couples and discusses reform in this area. Although there does seem to be an acknowledgement that the law should be changed, there are no proposals on the horizon at this time. The full paper can be found here.

Good to know

Unmarried couples do not automatically have rights over the property in the sole name of the other on relationship breakdown. It is possible to make an application to Court under the Trusts of Land and Appointment of Trustees Act in respect of the property if the unnamed party can prove certain criteria. If a couple are married, all property held in the sole names of the other are considered matrimonial assets available to be distributed between the parties on divorce.

If parents of a child are married then they are both assumed to have parental responsibility for a child, regardless of whether the father’s name is on the birth certificate. However, if parents are unmarried at the time of a child’s birth, the father’s name will not automatically be recorded on the child’s birth certificate and therefore the father would not have parental responsibility for the child unless his name is recorded on the birth certificate. It is possible to enter into an agreement at a later date which would grant the father parental responsibility for the child. If an agreement cannot be reached, the father would need to make an application to the Court for parental responsibility.

In a recent case, an unmarried couple held their property as tenants in common without a will. This meant that when one of the parties passed away, his share of the property passed to his estranged wife due to the intestacy rules, despite having been with his current partner for 18 years. His partner therefore had to apply to the Court to argue that his share of the house should in fact pass to her, not his estranged wife. The Judge ruled in the favour of his partner, recognising that they had been living as husband and wife for such a long time. This is a clear example of why people should ensure that their Wills are up to date and that they hold cohabitation agreements.

These are just a few areas of the law highlighting the lack of protection for cohabiting couples. Given the rise in the number of couples cohabiting, serious consideration does need to be given to altering the law in line with the current trend of modern society.

If you have any questions regarding Wills or common law marriage, our Personal Affairs team would be happy to help.