According to the Office for National Statistics, the number of people aged 16 years and over who live with a partner and have never married has continued to increase, rising by 1.3 million people since 2008, to a total of 5.0 million (10.4%) in 2018. Out of those almost 9 out of 10 opposite-sex couples (88%) cohabited before getting married in 2017. This proportion has steadily increased over the last 20 years.
Couples who marry through a religious ceremony are less likely to cohabit before marriage than those who have a civil ceremony. In 1997, less than half (48%) of all couples who had a religious ceremony cohabited before marriage compared with 83% of those who had a civil ceremony. In 2017, this gap had reduced and 81% of couples who had a religious ceremony cohabited compared with 90% of couples who chose a civil ceremony.
Research indicates that the majority of the public are unaware of the legal differences between marriage and cohabitation.
There is a prevailing belief that living together for longer than two years automatically leads to ‘common-law rights’ and many people are shocked to discover when they split up that this is not the case. Quite simply, there is no such thing as common law marriage and it has not existed since the mid-18th century.
Historically, there was uncertainty about what constituted a ‘proper’ marriage. In the 13th Century, Pope Innocent III declared that the free consent of spouses and not the formal solemnities of a priest were the essence of marriage. Throughout the middle ages, various courts gave overlapping judgments on how the matrimonial assets should be split. It was not until the Marriage Act of 1753 that common law marriage was formally renounced after a number of unscrupulous schemers seduced heirs and heiresses in an attempt to fleece them of their assets via the common law arrangements!
Of course, the legal realities of a potential split are unlikely to deter most couples from living together and couples often refuse to take legal advice at an early stage as they think it is ‘unromantic’ or breaching trust in a partner.
In the event the relationship breaks down or one party dies, the legal implications are very different and can lead to serious financial implications for a dependent cohabitee.
Capital assets, such as the family home, are treated quite differently to how they might be treated in divorce. At present, if a disagreement arises between cohabiting couples regarding property, the only recourse is through the application of trust and land law which can be extremely complex and costly.
Cohabitees do not have the same automatic entitlement to make financial, capital, spousal maintenance or pension claims as their married counterparts.
There are laws concerning the children of cohabiting couples as there is no distinction between married and unmarried parents when deciding issues regarding child arrangements.
Cohabitees should seriously consider entering into a Living Together Agreement (Cohabitation Agreement). The Agreement can set out details about how they intend to deal with financial contributions such as who pays for what whilst they are cohabiting and what they agree will happen in the unfortunate event that their relationship breaks down.
For more information regarding cohabitation please contact Lin Cumberlin: