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The decline of marriage, the myth of the 'common law' spouse, and the cohabitees caught in the middle

Posted on 15 May 2019

The decline of marriage, the myth of the 'common law' spouse, and the cohabitees caught in the middle

Recent research by the Marriage Foundation - a charity championing family stability — confirms that the pressure to marry has 'disappeared'; meanwhile we know that cohabiting couples are the fastest growing relationship unit. This is an example of one issue in which the law and society appear to be operating in different spheres.

The upside of the Marriage Foundation's findings is that couples marrying today have a lower chance of getting divorced (35%) than those who married in the late 80's (44%). But no steps have been taken to provide even the most basic legal protections for cohabiting couples, and more importantly, for their children, despite the fact that the Marriage Foundation claims 'cohabiting parents make up 19 per cent of all couples with dependent children'. We are now in desperate need of legislation to protect the individuals in these relationships, and any children of them, from being exposed to the financial risk that marriage would otherwise guard against.

The notion of a 'common law' spouse is a meaningless concept under English law, and yet the myth of its existence has not yet been dispelled. Cohabitation does not alter a couple’s legal status - unlike marriage and civil partnerships - from which many legal rights, responsibilities and obligations flow.

If we are to accept the statistics from the National Centre for Social Research (January 2019) that most cohabiting couples mistakenly assume they are in a 'common law' marriage - with the equivalent rights and protections as though legally married - the public awareness campaigns to inform the public of the lack of these legal safeguards have clearly failed. Today, the legal distinction between marriage and cohabitation is maintained, not for religious reasons – as is thought to be previously be the case - but because of parliamentary inertia.

Family lawyers are aware that the case for law reform is overwhelming. So why the delay? While other countries - including Scotland and Ireland - have been able to provide some legal remedies for cohabitants, why not England & Wales?

The current situation is worrying: in the event of a relationship break down where the couple is unmarried, the stronger economic party is able to walk away without financial responsibility towards their partner. When coupled with outdated views on cohabitants having non-existent 'common-law rights', this represents a ticking time bomb for the many cohabitants who choose not to marry.

While reform of existing laws is required, raising awareness of the need to seek whatever protections are currently available is also necessary. This can include declarations of trusts to regulate property ownership, and other options such as insurance products or wills.

Couples themselves who do not wish to marry need to minimise their individual risk. If they choose to cohabit, recognition needs to be given from the outset that, if their relationship breaks down, they have taken appropriate steps to address and minimise the potential loss suffered by the financially weaker partner. This can be done through a cohabitation agreement, for example.

Just as inequality in the workplace is no longer tolerated, inequality in the home must be addressed too. While employers are required to find and promote working models that support family life, there needs to be a significant shift in society’s assumptions about the responsibility of child care. Only then will we start to see much needed reform in the family justice system.

Read more about family law in our book: 19th Century Laws for 21st Century Relationships.

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