Common-Law Marriage: Fact or Fiction?
Over half of us believe that couples who live together are protected by ‘common-law marriage’ according to the British Social Attitudes survey published in January 2008.
But there is no such thing as a common-law marriage. The concept was abolished in the 18th Century. It is perhaps one of the most persistent misunderstandings of family law today. So what is the difference between how the law treats married couples and how it treats unmarried, cohabiting couples? If a married couple separates, the courts can share the assets of the marriage between them, taking into account a range of factors which include the non-financial contributions made by each person to the marriage and also their future needs. If an unmarried couple separates, the courts do not have these powers. Each person would generally walk away with what they own. This can often be unfair, especially if one person has made sacrifices for the benefit of the couple that are not reflected in the ownership of the couple’s assets. In some circumstances, one person can gain a financial interest in the other’s property, but this can be complicated to determine and often requires the involvement of the courts. If there are children, the courts have additional powers to ensure that they are properly provided for, but again, this requires one person making an application to the courts. Much of the legal uncertainty surrounding unmarried couples can be cleared up by them entering into a Living Together Agreement, which would be a formal, legally-binding agreement recording who would own what if the couple were to separate. Society’s attitudes towards marriage are continuing to change, with feeling seeming to grow towards the idea that the law should treat unmarried couples more like married couples. But no change in the law in this regard is on the horizon yet. For now, the best advice to any unmarried couple unsure about their legal position would be to consider making a Living Together Agreement. It may sound unromantic, but it could save significant heartache (and legal costs) if the couple were later to part. Article written by John Barklam, specialist family law solicitor at Saunders Roberts. He can provide expert advice about all the legal issues affecting unmarried couples, including the making of a Living Together Agreement or the sorting out of any property claims as between a separating couple. He can be contacted on 01386 442558 or at john.barklam@saundersroberts.co.uk. January 2008
