'Myth' of 'common law marriage' leaves disadvantaged groups disproportionately at risk
4 August 2022
A group of cross-party MPs is demanding reforms to laws which leave cohabiting couples with 'inferior' protections to those who have formally married or have obtained a civil partnership. With cohabitating couples representing the fastest growing family type in England and Wales, the Women and Equalities Committee's new Report, The rights of cohabiting partners, highlights the risks faced- often by women- upon relationship breakdown or the death of a partner.
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In the 25 years since 1996, the number of couples living together as cohabitants has more than doubled to 3.6 million, representing around 1 in 5 couples living together in the UK today. Despite this, a lack of legal protections means that, upon relationship breakdown, the financially weaker partner has no automatic rights to the family home. Instead, they rely on complicated property law and trusts principles and outdated legislation regarding child support.
The MPs also express concern at the distressing processes involved in accessing a survivor's pension- and indeed, keeping the family home- upon the death of a partner, where no formal marriage or civil partnership has taken place.
One of the largest issues, finds the report, is the common misconception that cohabiting couples automatically gain rights equal to a marriage or civil partnership- the so-called 'common law marriage myth'. 46% of those in England and Wales assume cohabitants living together form a 'common law marriage', rising to 55% of households with children. This erroneous belief can have 'significant consequences', with many falsely believing they have legal protections which turn out to be non-existent.
- The Government should implement an opt-out cohabitation scheme, as proposed by the Law Commission in 2007. This new scheme will allow couples to disapply the legal framework granted to them if they wished, which would give them autonomy while protecting financially vulnerable individuals. It would also provide certainty on the definition of a 'cohabitant', as there is currently no single, legal definition.
- Concerned about the prevalence of the common law marriage myth, the Committee call on the Government to urgently launch a public information campaign to highlight the legal distinctions between marriage, civil partnership, and choosing to live as cohabiting partners. The Government must also undertake a targeted information campaign for women in religious communities, highlighting the risks of having a wedding ceremony which does not meet legal formalities.
- Cohabitants must have the right to inherit the family home after the death of a partner and without the obligation to pay an inheritance tax bill. The Government must implement the recommendations made by the Law Commission in 2011, which would provide cohabitants with the right to inherit under the intestacy rules. It must also review the inheritance tax scheme so that cohabiting partners are placed on an equal footing to married couples and civil partners. Furthermore, clear guidelines should be published, setting out how pension schemes should treat surviving cohabiting partners.
Chair of the Women and Equalities Committee, Rt Hon Caroline Nokes MP, said:
"The reality of modern relationships is that many of us choose- for a vast number of reasons- not to get married, even when in a committed, long-term relationship. This number is ever growing, and it is high time that the Government recognised this shift in social norms, which has been taking place for well over 30 years.
The law has been left decades behind, as far as cohabitation is concerned, and this is leaving financially vulnerable individuals in precarious situations upon relationship breakdown or the death of a partner. It is completely unfair that these individuals have inferior protections to their married or civilly partnered peers. Deciding not to marry is a valid choice, and not one which should be penalised in law.
Not only must the Government urgently make legal reforms which would protect those individuals, including an opt-out cohabitation scheme, it must make the public aware that "common law marriage" is a myth. Far too many people are left high and dry upon relationship breakdown, relying on a common belief that turns out to be completely false."
- Inquiry: The Rights of Cohabiting Partners
- Women and Equalities Committee
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