Despite the growing costs of having a fairytale wedding day, couples are still clambering up the aisles for the title of Mr and Mrs, with an estimated number of marriages currently at 23.9m. However, the number of people putting off saying ‘I do’ in favour of living together is one that continues to grow.

With 5.9m people opting for cohabitation, this is an increasing preference to formal marriage or indeed civil partnership. But with 58% of people surveyed revealing they are unaware that ‘common law marriage’ is a myth, it’s becoming increasingly vital that cohabitees are aware of their legal rights in the event of separation. 

Currently if parties live together and do not marry or are not in a civil partnership then there are no automatic rights for property sharing or maintenance or pension sharing. Any claims in relation to property can only be dealt with through the narrow channels of trust and property law and a person who has not made any contribution to acquiring or improving the asset and who has not been promised a share in it, will have no rights. Child maintenance applies whether or not the parents are married but there is no provision for maintenance between adults as there would be in the case of a divorce.

It is often the case that cohabitation, which is a relationship which does not require any formal ceremony or the recording of any specific starting date, is often accompanied by similar vague notions of financial and property position.

Sometimes people only find out the truth when it is too late to do anything about it. It is a subject with which successive Governments are curiously reluctant to deal with because any debate on the subject very quickly involves suggestions that some form of cohabitation breakdown legal framework devalues traditional marriage.

It is interesting that there are two private members bills currently being considered by Parliament in Family Law matters; one in relation to cohabitation which seeks to introduce certain rights and entitlements which do not exist at the moment and another dealing with Family Law generally including automatic limitation on the duration of maintenance between spouses.

The proposals made within these bills will not meet with everyone’s approval. Some will say that it is wrong to impose a legal framework on people who may have had no intention of creating such relationship simply by living together. With proper information and education people can make decisions with their eyes open about whether  or not they want to find themselves in a situation where each pay have claims against the other when they stop living together.

Some would say that if you want the full protection that the law affords and the range of remedies available, then you should marry or create a civil partnership if you choose not to do either of these, then essentially you take your chances.

Others would say that social attitudes have moved on to such an extent that there should no longer be special status for those who are in formal marriages and that the law should not be treating couples in entirely different ways simply because they have chosen different family structure.

There is a definite clear polarisation of views on this subject briefly summarised as on the one hand ‘if you want full protection then marry. Do not expect the state to pick up the pieces for you if you do anything else’. Or at the other extreme ‘the state should not discriminate against people who choose to avoid formal marriage and to establish their households outside traditional structures’.

What is of note is that the proposed legislation that is being considered arises from private members bills brought by members of the House of Lords. As such there is not the slightest reason to think that they have a strong chance of actually becoming Law, without Government support.

Quite simply there is no Government policy in these specific areas - it has been left to others to attempt to fill the vacuum. 

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Paul Hunt

Paul Hunt , Senior Associate

As a senior solicitor Paul is responsible for cases involving divorce or separation, children, financial and property issues and domestic violence.

He is member of Resolution panel for private children law, ancillary relief and domestic violence. Paul is also trained in Collaborative Law.

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