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Couple walking down the aisle together

The myth of common law marriage

As one of the UK’s leading divorce practices, you might be surprised to learn that we’re very much in favour of marriage. Only marriage or a civil partnership can currently provide legal security for couples and their families – and contrary to popular opinion, there is no such thing as common law marriage in England and Wales.

The common law marriage myth is a persistently enduring one. A recent poll of 2,000 British adults commissioned by Resolution found that 37% of people thought that an unmarried couple automatically became common law spouses after living together for two years.

Worryingly, 27% of those polled thought that cohabiting couples have similar rights to married couples in the event of a relationship break-up. This is simply not the case – there is no such thing as common law marriage in England and Wales. Unlike married couples who divorce, the only rights that unmarried couples have to any assets are those that apply under property law.

The mistaken belief in the existence of common law marriage means that many couples do not take the necessary steps to protect their interests in the event of a split, or if one of them dies. One half of a cohabiting couple may have spent the last 25 years paying the family mortgage, but unless the house is in their name, or they are married, sadly their legal claim against the property is very limited. Marriage protects both partners, in that ultimately it gives divorcing couples access to the courts to decide upon the allocation of their assets if they cannot agree.

Not everyone wants to get married, or to enter into a civil partnership. It is possible to set out a cohabitation agreement to dictate how your assets will be divided in the event of a relationship breakdown. A good family law solicitor can help you with this. If you decide to get married at a later stage, a pre-nuptial agreement can help to outline how you would like your assets, such as property and pensions, to be split if you do later divorce.

The number of cohabiting couples has more than doubled in the last 20 years. This is in part due to demographic changes, with couples marrying and starting families later in life – but it may also be due to the enduring, yet mistaken, belief that unmarried couples have similar legal status to married couples.

Often cohabiting couples may purchase a house together (either in one or both partners’ names) without considering the consequences of whether or not they have made equal contributions in terms of the deposit, mortgage payments etc. An informal agreement, between a couple who are happy and in love, offers little protection later if their relationship status changes. Without a specific agreement in place when they separate, they may find it very difficult or even impossible to get their fair share of the property.

Resolution has been active in calling for greater rights for cohabiting couples, but successive governments have been reluctant to update this area of family law. In the meantime, if you want security, the only way is marriage.

If you are interested in finding out more about cohabitation agreements or prenuptial agreements, please give us a call on 0121 248 4001 or email us at info@benussilaw.co.uk for more information. At Benussi & Co. we are specialists in all areas of family law, including those relating divorce, separation and relationships.




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