The Law needs to give protection to married and unmarried couples | Developments with the ‘Common Law marriage’ and complications with cohabitation

Fewer people are getting married…

The Office of National Statistics shows the number of people getting married is at the lowest rate on record because ‘from 26.3% in 1991 to 37.9% in 2021, the proportion of adults who have never entered a legally registered partnership has increased every decade.’

and more people are choosing to cohabit without getting married…

The House of Commons Library has found ‘that the number of couples choosing to live together in a stable intimate relationship, without getting married or entering a civil partnership increased by 144% between 1996 and 2021’. 

These percentage changes are significant and must act as red flags for the Government to act in protecting cohabiting couples in the event that their relationship breaks down. There have been calls for the Government to acknowledge the ‘Common Law marriage’ but at present such a thing does not exist in legal terms. 

While Hegarty supports amicable resolution in Divorce we appreciate that this does not help everyone, as the data shows. Family structures are no longer defined by whether the parents are married or not, society is seemingly moving away from the formal partnership of marriage and Civil Partnership. 

However, while society and individuals may choose to move away from such a partnership, all relationships are inherently inclined to include disagreement. This means arguments and disputes will remain and there are going to be more between people that are not in any formal partnership.

While Hegarty supports calls for the Government to consider changing legislation quickly. What options are there for cohabiting couples now?

Couples who have children together should be mindful of their ability to claim financial provision for their children under the Children Act 1989. The sad fact being, however, that the parent who has remained at home to care for the children, has little legal financial protection themselves. This is something the Government should look to make a priority, if any new legislation is to be considered. 

Couples who own property together and are desperate to go their own separate ways, can seek resolution through the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) where they can force the sale of the property, should the ex-partner fail to co-operate. However, this area of law is extremely fact-specific and the Court does not have the wide discretion it has when dealing with Divorce or Dissolution of a Civil Partnership. 

For couples who wish to live together but only one owns the property, under the current circumstances, prevention is definitely better than the cure. Couples should obtain legal advice which enables them to obtain a carefully drafted Cohabitation Agreement that sets out what is to happen on separation. Not only will the non-owner be able to fully understand their legal rights and the implications of living in a home they do not own, they will then have the re-assurance that they have a document which, if drafted correctly, they will know is highly persuasive to the Court.

Change for cohabiting couples cannot come quickly enough. In the meantime, solutions to the problems of a modern family still need to be found and Hegarty will assist its clients in anyway that it can to achieve amicable and swift resolution.  

For more information or if you have any questions, please contact our family law team.