It is surprising that as much as 47% of the population still believe that cohabiting couples in a ‘common law marriage’ have the same rights as married couples. This is so far from the truth and it surprises me how many people still don’t appreciate the significant difference between cohabiting and being married.
The latest statistics (2021) suggest that as many as 3.6 million are cohabiting in the UK so it is very important that those couples understand their rights and the difference between cohabiting and being married. Many people choose to cohabit instead of marry for various reasons but the misconception of ‘common law marriage’ is a real concern to many family lawyers.
Unlike their married counterparts, upon separation, cohabitants do not have any entitlement to claim:
– Any pension sharing
– A fair division of the property or other assets
Burns v Burns 1984
Burns v Burns  is the most striking case, highlighting the lack of cohabitants’ rights and which I regularly tell my clients about.
In this case, the parties lived together for almost 20 years but the title to their home remains in Mr Burns’ sole name and he made all of the mortgage payments. Nevertheless, Miss Burns contributed to their household expenses over that time and brought up their child. Miss Burns argued that there was a common intention that she would receive a beneficial interest in the property, but this was not upheld by the courts. Despite the case being decided almost 40 years ago, there has been little progress in terms of introducing specific rights for cohabitants since then.
The practical difficulties
Cohabiting couples can choose to enter into a declaration of trust and/or cohabitation agreement when they purchase a property together or move in together. This would set out clearly from the outset what the cohabiting parties’ intentions are to avoid future potential conflict or litigation. However, those are difficult conversations to have and often the practical reality is that when a couple are buying a property together or moving in together the last thing on their mind is what would happen if they separate! Very often these formal agreements are not put in place at the outset which can lead to contentious litigation down the line.
Where there is no formal declaration of trust the presumption in law is that you intended to own equal shares. This presumption can be overridden by showing a common intention to the contrary, either at the time of purchase or later. To succeed, you would need to show a common intention to own the property in unequal shares.
Is there a better way?
Resolution is campaigning for change concerning cohabitants’ rights by proposing a legal framework to allow for eligibility criteria, whereby the parties will receive some legal protection at the time of separation unless they specifically opt out of this. If the proposed reforms are accepted then these would also give the court flexibility to tailor financial provision to the cohabitant’s particular circumstances and to take into account and provide for maintenance where applicable. For more information on the campaign by Resolution: Cohabitation | Resolution
We have many years of experience dealing with cohabitation disputes. Contact us for further advice on your specific situation: 01619806099