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Common law marriage - truth or myth?

01 August 2007

Many cohabitants believe in 'common law marriage': the idea that unmarried couples living together are, after a certain length of time, treated for all purposes as if they were married. This is a myth.

Cohabitants do not have access to statutory remedies to deal with the financial consequences of their relationship ending, which their married counterparts and those in civil partnerships have. What they do have is a patchwork of legal rules which are complex, uncertain and which can be expensive to apply.

Following their Consultation Paper the Law Commission's Report, published today, has confirmed its provisional view that situation is unsatisfactory. However, while many think that cohabitants should have access to exactly the same remedies as married couples and civil partners, the Commission does not since cohabitants have not made the legal and public commitment that marriage or entering a civil partnerships entails.

It therefore proposes a scheme entirely distinct from that which applies upon the breakdown of a marriage or civil partnership and which would apply only to eligible cohabiting couples who separate or upon death.

The scheme

The Commission does not think that all cohabitants should be able to obtain financial relief in the event of separation, but only where:

• the couple satisfy certain eligibility requirements;

• the couple had not agreed to opt-out of the scheme; and

• the applicant had made 'qualifying contributions' to the relationship giving rise to 'certain enduring consequences at the point of separation'.

Eligibility

The scheme would apply to cohabitants who have a child together or who have lived together for a specified number of years. The Report does not make a specific recommendation as to what the minimum duration requirement should be, but suggests a period of between two and five years would be appropriate.

Disapplying the scheme

The Commission rejected the requirement that in order to qualify couples should 'opt-in'. However it respected the rights of couples who have chosen not to marry or enter into a civil partnership to have autonomy over their arrangements. It therefore recommended that, subject to necessary protections, couples could disapply the scheme by means of an 'opt-out' agreement.

Qualifying contributions

In order to obtain a remedy, applicants would have to prove that they had made a qualifying contribution to the relationship which has given rise to enduring consequences: she/he would have to show that the other retained a benefit, or he/she had an ongoing economic disadvantage, as a result of their contribution to the relationship.

The scheme would therefore be very different from that which applies between spouses on divorce or upon the breakdown of a civil partnership. Simply living together cohabiting, for however long, would not give rise to an entitlement.

Nor would the scheme grant remedies simply on the basis of a party's needs following separation. The value of any award would depend on the extent of the retained benefit or continuing economic disadvantage. The court would have discretion to grant such financial relief as may be appropriate to deal with these matters. Where there are dependent children, the scheme would enable a remedy to be provided for the benefit of the parent with whom the children have their home, and so better protect the children's standard of living.

The Commission has also recommended the reform of existing statutory remedies applicable on the death of a cohabitant under the Inheritance (Provision for Family and Dependants) Act 1975.

Conclusion

The report is definite in its unwillingness to treat cohabitants as if they were married. It appears to go no further than recommend that the remedies which are already available to cohabitants should be encompassed in a legislative framework. This may make the procedure less complex, more certain and possibly less expensive, but the scheme will not necessarily improve the position of a financially vulnerable cohabitant.

Sue Andrews is head of the family and matrimonial law team at B P Collins. For more information, please contact 01753 279045 or familylaw@bpcollins.co.uk.