There are many misconceptions about family law in this country, but one of the most enduring myths is that cohabitants will automatically acquire the same rights as married couples, simply by living together for long enough.

The myth of common law marriage

It is known as the myth of common law marriage: that somehow the common law (by which is meant law not passed by parliament) bestows upon couples who have lived together for a certain period the status of marriage.

But of course it isn’t true. No matter how long a couple cohabit they will never thereby become married.

And the rights referred to above are in particular the rights that married persons have upon the breakdown of the marriage, to make financial claims against their spouse, in respect of maintenance and property owned by the other party.

But cohabitants have no such rights. They can’t claim maintenance for themselves, and they can only make property claims in very limited circumstances, essentially where they can show that they have acquired an interest in the property, for example because of contributions that they have made to the purchase or improvement of the property.

The myth of common law marriage is extremely widespread. A 2019 British Social Attitudes Survey found that almost half (46%) the total England and Wales population wrongly assumed that cohabitants living together form a ‘common law marriage’. And it was even worse in households with children, where 55% of people believed in common law marriage.

With some 3.6 million people living together as cohabitants in the UK, it can be seen that a very large proportion of the population are living under the erroneous belief that they have legal protections when they do not.

This of course means that they can suffer unexpected economic hardship, and even lose their homes, when their relationship breaks down, despite committing years of their lives to the relationship, including possibly bringing up children.

Report recommends rights for cohabitants

The perilous position of cohabitants upon relationship breakdown was recently recognised by the House of Commons Women and Equalities Committee, a cross-party committee of MPs which holds Government to account on equality law and policy.

In a report upon the rights of cohabiting partners the Committee highlighted the risks faced by cohabitants upon relationship breakdown, and recommended that that the law be reformed to give them limited legal protections.

The Chair of the Women and Equalities Committee, the Right Honourable Caroline Nokes MP, said: 

“The reality of modern relationships is that many of us choose- for a vast number of reasons- not to get married, even when in a committed, long-term relationship. This number is ever growing, and it is high time that the Government recognised this shift in social norms, which has been taking place for well over 30 years.  

“The law has been left decades behind, as far as cohabitation is concerned, and this is leaving financially vulnerable individuals in precarious situations upon relationship breakdown … It is completely unfair that these individuals have inferior protections to their married or civilly partnered peers. Deciding not to marry is a valid choice, and not one which should be penalised in law.”

Opt-out cohabitation scheme

In fact, what the Committee is proposing is not quite that cohabitants be given the same rights as married couples.

It is proposing that the Government implement an opt-out cohabitation scheme, as was proposed by the Law Commission back in 2007.

The Commission recommended a scheme whereby cohabitants should be able to apply to a court for financial relief in the event of separation, but only where: they satisfied certain eligibility requirements; they had not agreed to disapply the scheme; and the applicant had made qualifying contributions to the relationship, giving rise to certain enduring consequences at the point of separation.

The eligibility requirements were that the couple had had a child together or had lived together for a specified number of years. The Commission did not make a specific recommendation as to what the minimum duration requirement should be, but suggested that a period of between two and five years would be appropriate.

Couples would be able to disapply the scheme by means of an opt-out agreement (subject to necessary protections), leaving them free to make their own financial arrangements upon separation.

The qualifying contributions point is what makes the rights of cohabitants different from those of married couples. Whereas a married person can apply for financial relief merely on the basis of their needs, a cohabitant would have to show that the other party retained a benefit, or that the applicant had a continuing economic disadvantage, as a result of contributions made to the relationship.

The value of any award made by the court would depend on the extent of the retained benefit, or continuing economic disadvantage.

Of course, we will have to wait and see whether the Government heeds the recommendation of the Committee, or whether it shelves the scheme proposed by the Commission, as previous governments have done. Hopefully they will act, so that cohabitants at last have the basic legal protections they deserve.