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Cohabitation Rights -The Myth of the Common Law Wife

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The most up to date statistics from the Office for National Statistics (ONS) confirmed that cohabiting couples are the fastest growing family type in the UK, with a 29.7% increase between 2004 and 2014.

In 2014, around 1 in 8 adults in England and Wales were living as part of a couple, but not currently married or in a civil partnership. This is a significant portion of our society, the cohabitation rights and the legal position of such couples is no different to the position between two strangers regardless of how long the relationship has been in existence. This differs greatly from the legal position of a couple who have taken that extra step of getting married or entering a civil partnership.

The main reasons such a large group of people are living together but aren’t married/ civil partnered are, I think, twofold. First, getting onto the property ladder is a priority for many people and is financially onerous - setting up a home is important for many couples, and the prospect (and viability) of arranging (and affording)  a wedding is simply deferred until later on in life.  The most common age group for those cohabiting but not married or in a civil partnership is the 30 to 34 age group, and this shows that people may be in serious committed relationships but not yet married (where historically, couples cohabiting in this age bracket may have been more likely to be married).  The second main reason I consider plays a part in the number of unmarried cohabitees is the move away from the traditional family type, with far less of an emphasis on marriage before cohabitation as was seen in earlier generations.

Given the current level of misunderstanding about the legal position and cohabitation rights, the practical implications of these statistics are worrying.  Many people will have heard of a “common law wife” and believe that this is some form of legal status bestowed on those who are not married, but live as if they were married in a cohabiting stable relationship.  Often people believing in the common law wife status think it is something earned after a certain length of time cohabiting. The reality under English law today is far removed from this and the idea of a common law wife is simply an urban myth.  English law does not give any particular rights to unmarried couples, regardless of their level of commitment or length of cohabitation.  This often surprises people and can leave certain individuals vulnerable.

It is not unheard of for couples, for various reasons, to arrange for a property to be purchased and held in the sole name of one party. If that relationship then breaks down, the other party is left with limited avenues to pursue in asserting any interest in that property. The start point in unmarried property cases is always to look at the legal title, so if the house is in the sole name of one party, the other may face an uphill struggle to assert an interest. That’s not to say a claim won’t be successful, as they can be; however, had the couple been married or civil partners the start point (regardless of the legal ownership) would be a presumption that the equity in the property should be shared. 

Other jurisdictions have varied provisions for unmarried cohabiting parties and cohabitation rights, but the reality in England and Wales is that there is no protection offered by the law.

Should a relationship break down, there are of course legal routes open to explore but these are more limited, and more onerous, than the options available had the parties been married. If  unmarried couples have a child together, then there are further provisions which potentially offer some protection, pursuant to Schedule 1 of the Children Act. I will blog about these discrete provisions separately.

One simple solution is to agree in advance what would happen if you were to separate in the future. Declarations of Trust can record intentions for a property to be held in different shares to those expressed in the legal title, and cohabitation agreements can set out in more detail agreements as to how ‘living together’ will work in practice and what should happen in the event of separation. These are all documents we can prepare and advise on. I will shortly be blogging on the possibilities of entering into a cohabitation agreement, which can help to protect parties and set out their intentions if marriage is not currently on the cards, and further blogging about the legal proceedings that can be pursued if you do not think the legal title properly reflects the ownership of a property (which explore whether the land was ‘held on trust’ for parties not necessarily named on the legal title).

You can contact Justine Osmotherley from our Family team on 0113 336 3323 or by email at justine.osmotherley@clarionsolicitors.com

Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.