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Could it be the end of the destructive ‘common law’ myth?

Recent news that calls for cohabitation law reform are being led by a group of cross-party MPs is a development that could save the financial futures of thousands of people each year.

Periodically, we at Dale & Newbury have raised the issue that many unmarried couples wrongly believe that simply living together provides financial protection if the relationship ends.

This myth, which has proved difficult to communicate generally means that a couple could live together for years - have children, a home together etc., but one of them, the one not on the mortgage and financially weaker could end up in a very difficult financial position.

The MPs involved in the cross-party group now wish to tackle the issue that cohabiting couples have poorer legal protection than those who are married or within a civil partnership.

The Women and Equalities Committee has published a new report titled “The Rights of Cohabiting Partners”, highlighting the lack of protection against the risks faced by cohabiting couples.

As cohabitation is the fastest growing family type in England and Wales it simply cannot be ignored. In 2021, there were around 3.6 million cohabiting couples in the UK compared to 25 years ago.

In the real world, upon the breakdown of a family, cohabitants must rely on complex property law and trusts principles.

The report says the Children Act 1989 is outdated, and mostly benefits the children of wealthy parents and needs reform. On death, cohabitants do not automatically inherit from their partner.

Women in the main, the report added, suffer mostly from this problem.

The report went on to make several key recommendations, including:

  • The Government should legislate for an opt-out cohabitation scheme as proposed by the Law Commission. The Ministry of Justice should commission a refresh review of the recommendations to see if they need updating.
  • Support for the Law Commission’s 2011 proposals concerning intestacy and family provision claims for cohabiting partners, the Government implementing those proposals. The Government should also publish clear guidelines on how pension schemes should treat surviving cohabitants when claiming a survivor’s pension and recommends that Ministers review the inheritance tax regime so it is the same for cohabiting partners as it is for married couples and civil partners.
  • Lastly, the Government should launch a public awareness campaign to inform people of the legal distinctions between getting married, forming a civil partnership and living together as cohabiting partners.

Most of us in family law believe this is a positive step as the lack of rights for cohabiting couples has seen millions of people put at financial risk if their relationship ends or their partner dies.  

Ministers, we believe, have a moral obligation to act now - otherwise, left in its current state, the law will consign even more families to hardship.

It’s also good to hear that the committee have called for a public information campaign that would help extinguish the myth that, ‘common law marriage’ exists in England.

We hope it is the start of a movement, which will see co-habiting families covered by laws giving them specific rights.

It is a subject we will watch eagerly.

If you wish to know more about this subject or any aspect of family law, please get in touch with our team. We are happy to help.