Dispelling the Myth of Common Law Marriage

  Should married couples and cohabitating couples be afforded the same legal rights?

A recent study of over 1,000 cohabitating couples in the United Kingdom has shown that legislative change is necessary to protect the rights and assets of those who choose to live as a couple without getting married.

Cohabitating couples represent the fastest growing family type in the UK and have doubled since 1996 to over 3.3 million people and make up 17.5% of the population. Those who would like to live without the ‘stresses’ of marriage, or simply don’t believe it’s necessary, often end up having to face these stresses on the breakdown of their relationships.

Cohabitation and its place within property law

35% of those surveyed believed that, like many other countries including Canada and the United States, unmarried couples who live together for a set length of time are afforded the same rights and protection under the law as those who are married. This is simply not true in the UK, and those who plan to own property should be advised of their options before committing to said ownership and mortgages together.

The absence of a cohabitation agreement (similar to a pre/post nuptial agreement for their married counterparts), can be detrimental to both parties on the breakdown of a relationship.  What may seem like a difficult conversation to have with someone you love could allow for a meaningful discussion between both parties and a solicitor to come to an agreement on how the property will be held and the split of the eventual proceeds.

What is the significance of ‘how a property is held’?

35% of cohabitating couples were unaware that if a property is held as Joint Tenants, the value of the home is typically split 50:50 regardless of how much either party contributed to the deposit, mortgage payment, or bills. Furthermore, of those couples who do hold their properties as Joint Tenants, only half actually contributed equally in terms of a deposit, and even less so in terms of mortgage repayments. 60% of couples were unaware that the property will automatically pass to the other cohabitee if one was to predecease the other. A mere 14% hold as Tenants in Common, where the proceeds can be split in agreed percentages and even left to others in their will.

What this entails for those who cohabitate and come to the end of their relationship, is one party who either contributed significantly in terms of financial contributions ending up with only 50% of the proceeds on sale of the property, or one partner who is not a legal owner of the property, but who has made considerable contributions (financial or otherwise, including being a stay at home parent) being left very little or nothing at all.