There is a myth that cohabiting couples have similar legal protection as a married couple on separation, if they have lived together for a certain period of time. They are commonly referred to as “common law” husband and wife. Sadly, this is incorrect. On separation, many unmarried couples are left in a very precarious position.
The number of couples cohabiting are rising. In 1996 there were 1.5 million cohabiting couples. In 2021 this more than doubled to 3.6 million. This includes some religious marriages which are not recognised as valid in England and Wales, such as an Islamic or Hindu marriages. To constitute a valid marriage if conducted in England and Wales, there must also be a civil marriage. Unfortunately, many people are unaware of this fact until the relationship has broken down by, which time it is too late to rectify the situation.
In 2007 the Law Commission proposed an opt out cohabitation scheme. It only applied to cohabitees with children and was intended to ensure a fairer division of assets if the relationship broke down. It aimed to protect people who were economically vulnerable and preserve individual autonomy whilst still preserving the distinction with marriages and civil partnerships. The scheme remains a proposal and has not been adopted despite the fact the proposals are still pertinent today.
Regrettably, cohabiting couples continue to remain in limbo due to the lack of legal rights. Consequently, cohabitees, predominantly women, face significant financial risk if their relationship ends.
In the absence of an agreement, cohabitees will need to make an application to the County Court where property and equity rules apply. Further financial orders can be sought under schedule 1, Children Act 1989 but only if there are dependent children. For cohabitees, the law and legal proceedings can be a very confusing and expensive minefield. Mediation is a much better option in most cases.
Photograph courtesy of Brett Andrei Martin