By Serena Anand and Megan Bennie
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Cohabitation and the Common Law Marriage Myth

By Serena Anand and Megan Bennie

Cohabiting, the act of living together whilst not being married (or in a civil union), is an increasingly popular choice, especially amongst younger generations.

Recent surveys carried out by the Office of National Statistics estimate that the number of cohabiting couples has more than doubled in the past 20 years, from 1.5 million cohabiting families in 1996 to 3.3 million in 2017.

The rise in cohabiting couples brings with it a new dimension of relationship breakdown. If a couple is married or in a civil union, the adequate property distribution to each individual will be assessed by the court in which they filed for divorce or dissolution. In the case of cohabitation, however, the matter will never go before a court, and the property will be divided in terms of legal ownership – meaning that whoever is registered on a deed or lease will become the legal owner. English law does not contemplate a “common law marriage” wherein a couple can become de facto married by virtue of having lived together for a certain period of time (certain States in the U.S., for example, do envision this type of marriage).

It is frequently stated that couples do not consider the legal ramifications that a relationship breakdown may entail when they enter into the relationship. As such, it is common that, upon breakup of a cohabiting couple, one person may not have legal recourse to the property they jointly lived in and will be unable to gain any financial support in finding a new home from the other individual either.

In certain jurisdictions, such as Scotland, the Scotland Family Act 2006 provides that a court may determine that each individual has an equal share in a property in which they cohabited and may need to equally divide up their assets and property. This is contingent on a showing of stability and reliance in the relationship, as well as subject to any agreements the couple may have entered into with each other. Nonetheless, it provides legal recourse where one individual may be surprised by the sudden loss of any claim to a property they always jointly cared for. Under the current system in England and Wales, the newly single individual not listed on a lease or deed may only be able to rely on equitable remedies provided for by property law, which may create further evidential issues and legal costs. A 2007 Law Commission Report recommended the implementation of legal certainty in England & Wales for cohabiting couples, and Baroness Hale has further been vocal on her support for legal effectuation of cohabitation. Nonetheless, Parliament has not chosen to act on the issue so far and, with Brexit on the table, it is unlikely cohabitation will become a top priority anytime soon. If you and your partner are cohabiting, considering moving in together or have recently ended your cohabitation, Grayfords can help you find a sustainable, durable legal solution.

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