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Cohabitation: dispelling the Common Law marriage myth

According to figures from the Office for National Statistics, around 3.3 million of the 18.9 million families in the UK are unmarried. The law provides very little protection for these cohabiting couples in the event of a break-up, as Lodders’ family law expert Caroline Dresden explains, as she sets the record straight on the ‘Common Law marriage’ myth.

It seems extraordinary to lawyers that anybody still believes in the ‘Common Law marriage’ myth; cohabiting couples in particular often assume this non-existent law gives them rights over the assets of their partner, in the event of a break-up.

The majority of unmarried couples certainly seem unaware of their lack of legal rights, both in life and in death, with many still believing they have acquired similar rights to married couples because of the length of time they have lived together.

Whilst there are regular calls for legal reform in this area, little seems to happen, and currently, the length of time a couple has been cohabiting and whether or not they have children, has no bearing whatsoever on their rights against the other if they should separate.

After a long marriage, or where there are children, an equal division of the matrimonial pot would be the starting point for married couples.

In the eyes of the law, unmarried couples are not entitled to anything.

Claims under TOLATA

What makes it worse for cohabiting couples is the cost of pursuing claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), for property claims, or Schedule 1 of the Children Act, for financial support for a child, can be very expensive.

Under TOLATA, if the property is owned by one partner, the cohabiting partner must show there was a ‘common intention’ between them that the non-owning party would have a beneficial interest in the property and that they acted in reliance on that intention, to their own detriment.

However, this is usually very difficult to prove and will depend on a person’s credibility as a witness giving evidence in court.  Cohabitants also do not share the benefits of married partners, which include asking that a court orders a lump sum payment or transfers a property.

Where parties cohabit and one party, usually the mother, has given up work to look after the children, when the relationship ends, she may find herself with absolutely nothing. There are no claims available to her – or her children unless they are minors (under the age of 18).

Children Act

The clue is in the name – the Children Act 1989 is very much focused on the child.  There is nothing which protects cohabitants.

Specifically, Schedule 1 of the Children Act can enable an unmarried partner to apply to the court for an order to remain in the family home and receive periodical payments – but the father must have sufficient wealth to make the application worthwhile.  In any event, if a property is obtained for a mother and child to live in, once the child reaches 18, or finishes university, it will usually revert to the father.

The mother is left homeless, again.

Case Law

Two cases in 2007 and 2011, Stack -v- Dowden and Jones -v- Kernott, tried to extend and adapt Trust Law to the context of cohabitation, but they have a limited effect on cohabiting couples’ cases today. Both these cases deal only with a particular property, in which the parties lived together, but purchased for whatever reason in the name of one party only.

Even after one party dies, under the Inheritance Act 1975, the parties must have been living together for at least two years before death, before one can claim dependency upon the other, which might enable a limited claim.  A cohabitant is not included as a person who can automatically share an estate under the Intestacy Rules, although children can make a claim.

Cohabitation Agreements

Cohabiting couples should seriously consider entering into a formal Cohabitation Agreement to govern their financial relationship, and also consider Declarations of Trust in respect of the property.

As a point of principle, many people think cohabiting couples should not have the same remedies as married couples and civil partners, because they have the choice to marry or enter into a civil partnership.

There is some talk of a statutory scheme being introduced, that would give some eligible cohabitees (say those who have a relationship of over 2 years) protection, but the current position is there is no protection.

It takes two

If one party wants to marry but the other does not, specifically because of concerns the desire to marry is driven by financial motives, parties can enter into a Pre-nuptial agreement, re-signed after marriage to become a Post-nuptial agreement. These agreements serve to clearly set-out financial rights and responsibilities, and importantly, any limitations, which ensure clarity and understanding before the parties even marry.

Who says romance is dead!

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Diane Wood, V Formation on 07887 794507 or by email

Get in touch

For more information on this article, please contact Caroline Dresden on 0121 200 0890 or drop her an email.