Common Law Marriage – Myth-busting
The term “common law marriage” is often used to describe a relationship between two long term partners who live together but are not married or in a civil partnership. But what does it actually mean in the context of matrimonial law? Well, to put it bluntly, it means nothing.
No Such Thing
In English law, the concept of a common law marriage simply does not exist. It never has. Referring to a relationship as a common law marriage does not give that relationship with any additional rights and it certainly does not create the same level of rights enjoyed by those who are married.
Essentially, if you are not married to your partner but you are living together, regardless of the length of your relationship, you are simply co-habitees. You have no special rights over the assets of your partner (in direct contrast to the rights of a spouse where it is presumed that all assets will be divided equally and their division is governed by the Matrimonial Causes Act 1972) and you are not entitled to maintenance payments except in respect of any children you may have had together, where it is only the children who are the beneficiaries of these payments. Any joint assets will be dealt with in accordance with property law in force at the time.
However, it is not all doom and gloom. The law is a living, breathing object and, although it takes time, it adapts as a society and develops to cater to changing circumstances. More and more people are choosing to live together and to start a family without getting married and in time, the law should catch up.
Although the rights of co-habitees are still very limited, there are options available and each case turns on its own facts. In the recent case of Southwell v Blackburn , a co-habiting girlfriend made a small contribution to the purchase price of a property owned in her partner’s sole name and uprooted her children to move in with him. As she had acted to her detriment because she had been assured she would always be able to live there, the court found that she was entitled to a proportion of the value of the property.
In this case, the crucial points were that the co-habiting girlfriend had contributed to the purchase price, had been offered long term security by way of a promise and had relied upon this and acted to her detriment by uprooting her children and moving in with him. In the interests of fairness, English law therefore imposes a trust in these circumstances to protect the co-habiting girlfriend’s financial interests in the property. Therefore, on the flip side, where there is a co-habiting relationship with little to no financial ties between the co-habitees (e.g. if the couple rented a property) the likelihood is that if that relationship ends, there will be very little to argue over in respect of each other’s finances and both parties will simply walk away from the relationship.
If you are in co-habiting relationship where there are complex financial matters and you do not intend to marry, it may be worth considering entering into a co-habitation agreement to govern what will happen if your relationship breaks down. However, the obvious difficulty with this is how to approach this topic with your partner without causing any unnecessary problems.
The obvious issue with a co-habiting relationship when compared to a marriage is that co-habitees are not afforded the same level of legal protection when the relationship breaks down, particularly where the finances in the relationship are complex.
If your relationship has broken down or you are worried about your rights, whether you are married or not, we provide practical legal advice when it comes to the financial aspect of your separation or divorce.
To discuss your situation with one of our team, please contact the office on 01872 241408 or click here to contact our family team.