Can the ‘common law marriage’ myth finally be bust?
Cohabiting couples represent the fastest growing family type in England and Wales (1 in 5), however, they do not have the same protections as married couples or those who have obtained a civil partnership – ‘common law marriage’ does not exist.
Ministers have a moral obligation to act now to protect them [cohabiting couples] – otherwise, left unreformed, the current law will consign even more families to misery and dire financial hardship.Graeme Fraser, Chair of Resolution’s Cohabitation Committee
What is the current law for cohabiting couples?
At the moment, married couples and civil partners have protections under the Matrimonial Causes Act 1973 and Schedule 5 of Civil Partnership Act 2004:
- The courts have a broad discretion to make financial orders with reference to a range of factors, primarily focussing on the welfare of any children and the needs of the parties. The order the court can make include the redistribution of property, ordering payments for maintenance (spousal and for children) and the sharing of pensions.
- Married couples and civil partners are also protected on the death of their spouse/partner, by intestacy rules and the Inheritance (Provision for Family and Dependants) Act 1975. They are able to access their deceased partner’s pension easily and benefit from Inheritance Tax Relief on transfers of property.
The protection afforded for separating cohabiting couples is substantially different (and worse):
- There is no specific law to assist cohabiting couples and instead, they have to rely on the general laws of contract, property and trusts which are not straightforward and often more expensive and complicated to pursue.
- The separating couple are not entitled to maintenance for themselves.
- The separating couple can claim for child maintenance via the Child Maintenance Service and often only applies until the child is 18, unless the parents are extremely wealthy.
- The separating couple do not have any rights over their partner’s pension, regardless of non-monetary contributions to the relationship.
- On death, cohabiting partners are not eligible under the intestacy rules and whilst they can apply under the Inheritance (Provision for Family and Dependants) Act 1975, they must have been living with the partner for 2 years and there are limits on the provision provided.
- On death, cohabiting partners are not able to easily obtain their deceased partner’s pension and have to provide evidence of mutual dependency (which is often difficult) and it is still at the full discretion of the pension trustees.
- On death, cohabiting partners must still pay inheritance tax on any transfers of property from the deceased’s estate which can be unaffordable for many.
What are the recommendations?
- To create a clear definition of cohabitation: where a couple are living as a couple in a joint household; and they are neither married or civil partners.
- To set out eligibility requirements for remedies on separation: 2-year minimum relationship duration or the presence of a child.
- To provide remedies where the applicant has made qualifying contributions to the relationship which gave rise to continuing economic disadvantage unless they have ‘opted out’.
- To provide protection under the intestacy rules for couples who have cohabited for 5 years (or 2 years if they have a child) without needing to go to court.
- To provide protection under the Inheritance Act where the couple have a child and one partner dies, without the requirement for cohabitation for 2 years.
- To provide clear guidelines as to how pension schemes should be treated.
- A review of the IHT regime so that cohabiting couples benefit from the same reliefs.
- To have a targeted government run campaign to dispel the common law marriage myth.
What could these changes mean for cohabiting couples?
The Women and Equalities Committee has asked for Parliament to table a bill on this matter in 2023-24 and the Law Commission may need to conduct a further review (they last reviewed the above in 2007 and 2011).
So, although there is no immediate change for couples and families a long-awaited change is on the horizon. lf the above recommendations come into place and you are in a cohabiting relationship you will need to consider whether you are happy affording each other these protections or if you would like to opt out. If you do not opt-out, you would be better protected in the case of separation and on the death of your partner.
How Moore Barlow can help
We have offices in London, Richmond, Southampton, Guildford, Lymington and Woking, and offer specialist legal support for cohabiting couples and wider family needs. If you would like advice as to how you can protect yourself now, please get in touch.