Rainscourt Family Law Solicitors

Unmarried Couples: The Myth of the “Common Law Marriage”

A Guest Blog by Martha Gray, barrister at 42 Bedford Row.

Despite an increasing number of couples choosing to cohabit and have children without getting married the myth of “common law marriage” persists.  In fact, although cohabitants do have some legal protection in several areas, cohabitation gives no general legal status to a couple.  Unmarried couples have no guaranteed rights to ownership of each other’s property on relationship breakdown. If a cohabiting couple separate, the courts have no power to override the strict legal ownership of property and divide it as they may do on divorce.  Instead, generally speaking, property will be divided according to its legal ownership.  In other words according to whether the party is held in joint names, the sole name of one of the parties or together with any third parties.

If a party alleges that the legal ownership is not an accurate reflection of the true (known as ‘beneficial’) ownership of the property, the court will make a determination based on the application of the law of trusts and proprietary estoppel under the Trusts of Land and Appointment of Trustees Act 1996 (TLATA).  The law is highly technical and widely perceived to be uncertain.  Importantly, the length of cohabitation is not necessarily relevant, rather the court is concerned with the intentions of the parties whether express or implied (e.g. by the parties’ respective financial contributions to the property).  A full examination of the facts can be costly hence the importance of getting legal advice about your rights early on.  Increasingly, couples are drawing up cohabitation agreements which set out what will happen if the relationship ends.  Although there is no guarantee that such an agreement would be enforced by the courts it can give couples more certainty about arrangements in the event of relationship breakdown and so save costs later on.

For couples with children, further support is available in the form of child maintenance.  Child maintenance is ordinarily claimed via the Child Maintenance Service unless the payer’s income exceeds the maximum maintenance assessment of £3,000 gross per week in which case an application for further support can be made to the family courts.  However, all parents are entitled to apply for further support in the form of a lump sum or the transfer and settlement of property under Schedule 1 of the Children Act 1989 where necessary, for instance, to provide an appropriate home for a child during his/her minority.  Such a claim can be brought together with an application in respect of property under TLATA.

Martha Gray practises in family law. She represents clients in a full range of family matters encompassing matrimonial finance and cohabitation disputes, private and public children law and domestic violence. She also has an interest in representing vulnerable and incapacitated adults in the Court of Protection.

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  1. Pingback: Why Are More Couples in the UK Cohabiting Instead of Marrying?