Mythbusting: Common Law Marriage
November marks “Cohabitation Awareness Week” by the national family law organisation Resolution. It aims to make couples who chose to live together without marrying aware of the lack of rights they have in the event that relationship ends.
There is an enduring belief amongst the general public that “common law” marriage exists. A 2017 ConRes study of 2,000 adults showed that 84% of adults believed that they were in a common law marriage.
The essence of the belief is that parties can acquire the rights of a married couple, without there being a formal marriage ceremony that complies with the relevant laws, having lived together for a period of time.
It cannot be stressed enough – this is not true!
There is no such status as a common law husband or wife. You do not acquire the status of a spouse by living with someone else, or greater protection or rights if the relationship ends, no matter how long you live together.
In those circumstances, the law treats such couples as any other non-associated adults for inheritance, tax and also on the ending of the relationship. This can come as quite a shock to some people on the end of an unmarried relationship.
What are the differences between the end of a formal marriage and an unmarried relationship when those relationships breakdown?
On divorce, all of the family assets are pooled, and then divided. This includes property, cash, pensions and other assets. These can be in the names of the joint assets of the parties, or their respective sole names. Incomes are taken into account too, as there can be payments of spousal maintenance.
There is a broad discretion to rearrange the assets, and while an equal sharing is a starting point, that can be moved from. The approach is very forward looking, as it looks at how the assets can be divided so that both parties can meet their needs, and those of any children.
A whole range of factors is taken into account in order to try and achieve a fair solution to the matter, which varies from case to case. Often the factor that drives division is that of need (usually the need to be housed), which overrides all other considerations, such as length of the marriage or who paid for what.
None of this applies when an unmarried relationship breaks down. Neither party is automatically entitled to look to the other for financial support and a share of their assets, no matter how long the relationship is. Pensions cannot be shared, and if there are no children, no maintenance is payable.
Property can be shared, but only if a party is able to establish what is known as a “beneficial interest”
Establishing a beneficial interest can be by:
- Express agreement. This is often the simplest way to do so. The parties have a written document that sets out that they have a beneficial interest. This may be that both parties are on the title deeds to the property, or there is a specific, separate, document that sets these out. On the whole, absent fraud or duress, these documents are binding, and determinative of the matter.
- Implied agreement. If there is no express agreement, it is possible to imply that there is an agreement. This is often by one party contributing to the purchase price of the property, or making repayments to mortgage capital. A consideration of the conduct of the parties can also be involved, often relying on recollection of discussions that took place some time ago.
- Estoppel. This has some overlap with implied agreement. In essence, one party is promised something by another party. The party who has given the promise in someway acts to their detriment on the promise. The party who then gives the promise cannot withdraw from that promise.
A key difference in these situations is that the court looks backwards to the time of acquisition of the property and the conduct of the parties during the relationship. Whether or not that analysis leads to a party having enough to meet their housing needs going forward is not part of that consideration. This can leave parties in significant financial hardship after the end of a lengthy relationship if they cannot establish a beneficial interest, or only a limited one.
Establishing these interests can also be complex and risky. There is quite considerable scope for the facts to be disputed, and if the matter proceeds to a court hearing, serious costs consequences may follow for the unsuccessful party.
If the couple have children, then awards can be made to meet the needs of children, regardless of the extent of any beneficial interest. This though is only for the needs of children, and money provided for housing will usually have to be returned when the child reaches majority.
Parenting status is also much more on a par with married couples, and so long as the father is registered on the child’s birth certificate, the parents will share parental responsibility.
As can be seen, unmarried couples have limited rights if their relationships break down, and can be left with little if they cannot muster the evidence to establish a beneficial interest at the end of the relationship.
Specialist legal advice at the outset and at the end of the relationship is essential. At the outset, so that documents can be created which set out each party’s entitlements should the relationship break down, and at the end, so that any possible beneficial entitlement can be properly investigated.