12th Jan 2016

I do - or rather should I have done?

The number of people living together in the United Kingdom has increased considerably over a period of time. In 2003, there were 2.2 million couples living together but by 2013 this had increased to approximately 2.9 million. That equates to not far short of 6 million people, altogether approximately one tenth of the national population. Why is this something that should bother a family lawyer?

I regularly see clients who have been living together for a number of years who describe themselves as “common law spouse”. They are firmly of the opinion that as they have been together for so long and perhaps have had children, that they are entitled to “rights” and expect the law to protect them. Indeed, according to Resolution, the association of family lawyers committed to a constructive and non-confrontational approach, some 47% of the public aged between 18 and 34 think that cohabiting couples have the same legal rights as if they were married. This is not the case and there is no such thing under English law as a “common law marriage”.Therefore it is quite possible for somebody to be living with another person for many years, decades even, and have several children but when the relationship ends have no claims that they can bring whatsoever. If a married couple separate the Court has powers to order one person to pay the a sum of money, to adjust property ownership, to order the sale of properties, to make pension sharing orders and make maintenance orders. The Court has none of those powers for a cohabiting couple.

The only potential claim that there might be would be for child support which would be administered by the Child Maintenance Service if the couple cannot agree. Otherwise, a person seeking to bring a claim may have to rely on trust law if there is property involved (and even then it can be extremely difficult) or, if there are dependent children and there is wealth, a possible claim under the Children Act.

Other countries, even including Scotland, recognise these relationships and provide some degree of legal protection. Successive governments in England have considered the issue and whilst those proposals have been made in the past none have been put into effect. This however is not a problem that will go away. If legal protection is not provided then, inevitably, the problem falls back on the state that may then be required to rehouse a dependent partner and their children and also to provide financial support. Resolution are calling for a proper framework of legal protection which will be effective under certain conditions subject to the right of the couple to decide to opt out of those provisions if they so wish. There will be formalities required if opting out is chosen.

It is hard to see why this is not a good idea as it is inevitable that more and more people will live together rather than marry.

Written by Stephen Root of Berwins Solicitors.

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