The problem with the current law on cohabitation is that there isn’t one. Despite popular belief, there is no such thing as a common law marriage (it has not existed since 1753) and separating couples have very minimal legal rights or protection.
This often leads to the more financially vulnerable party potentially facing hardship and difficulties. Coupled with the fact that cohabitation is the fastest growing family type in the UK, it is time this inequality is addressed.
So, we asked Sushma Kotecha, Managing Partner from our Nottingham office to join us on the blog to add her voice to the continuing calls for cohabitation reform.
“Almost half of us mistakenly believe that common law marriage exists. The findings from this year’s British Social Attitudes Survey carried out by The National Centre for Social Research revealed that 46% of people surveyed are under the false impression that cohabiting couples form a common law marriage. This figure remains largely unchanged over the last fourteen years (47% in 2005) despite a significant increase in the number of cohabiting couples.
Cohabitees cannot rely on UK family courts. As it currently stands, there is very little legal protection for cohabitees who separate and need to resolve disputes that may have arisen in respect of property, finances and/or children. The law in this area is very complex and can lead to unfair outcomes.
For this reason, more people are turning to Cohabitation/Living Together Agreements to record the financial arrangements that are to apply in respect of their cohabitation and what should happen if their relationship fails.
Cohabitation/Living Together Agreements are contracts that can include provisions dealing with income, property, children, wills and legacies and many other issues that may be relevant.
Anne Barlow, Professor of Family Law and Policy at the University of Exeter said:
“Our data clearly shows that almost half of us falsely believe that common law marriage exists in England and Wales when, in reality, cohabitation grants no general legal status to a couple. Cohabiting couples now account for the fastest growing type of household and the number of opposite sex cohabiting couple families with dependent children has more than doubled in the last decade. Yet whilst people’s attitudes towards marriage and cohabitation have shifted, the policy has failed to keep up with the times.
The result is often severe financial hardship for the more vulnerable party in the event of separation, such as women who have interrupted their career to raise children. Therefore, it’s crucial that we raise awareness of the difference between cohabitation, civil partnership and marriage and any differences in rights that come with each.”
Notwithstanding a call for reform from lead bodies and Judges, the government has resisted implementing proposed changes that would make the system fairer for separating cohabitees.
Lord Marks’ Cohabitation Rights Bill has had its second reading and Resolution (a body of specialist family lawyers and other professionals) will be liaising with Lord Marks about laying the bill again in the next parliamentary session.
When this was debated in Parliament in 2014, the number of people cohabiting in the UK had risen from less than 3 million in 1996 to 5.9 million. The figure is now 6.6 million, and this rate of increase is not abating.
The Office for National Statistics’ 2018 figures shows that cohabiting families are the fastest growing family form and a quarter of all children are growing up in cohabiting families. About 40% of cohabiting couples have children together while cohabiting. The Bill is aimed not just at those couples but at their children, who stand to suffer from their parents break up.
If you intend to cohabit or are currently cohabiting and wish to regulate your rights in the event of a relationship break up to avoid the pitfalls and injustice of the existing laws, please contact our Client Care Team here to arrange an initial no-obligation options call with one of our lawyers.
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Author: Sushma Kotecha