The concept of common law marriage traces its roots back to medieval England, a time when transportation difficulties and limitations posed challenges for clerics and justices officiating at marriages. Unable to reach couples in remote rural locations, a unique solution emerged—couples could establish a marriage through “common law.” This historical practice laid the foundation for a persistent myth: the belief that unmarried couples who live together share equal legal rights as their married counterparts. However, as we explore the legal realities faced by cohabiting couples today, it becomes evident that common law marriage, while rooted in history, does not afford the same legal protections as formal marriage.
The Myth Unveiled:
Contrary to popular belief, common-law couples are not protected under property law in the same way as married couples. The duration of cohabitation holds no sway under English law, debunking the myth that extended periods of living together automatically grant legal rights akin to marriage.
The Statistics:
In 2017, the UK witnessed a significant shift in family dynamics, with unmarried cohabiting couples experiencing the fastest growth. With 12.9 million families being married or civil partner couples, the cohabiting couple family emerged as a rapidly expanding family type. Understanding the legal implications becomes imperative as the landscape of family structures evolves.
Protection for Cohabitants:
While common-law couples lack automatic legal protection, there are proactive measures they can take to safeguard their interests:
- Cohabitation Agreement: A cohabitation agreement serves as a paramount tool for cohabitants to outline their intentions, providing clarity on property division in case of a dispute. Although not legally binding, this document can significantly aid courts in understanding the couple’s expectations and guiding their decisions.
- Legislation Support: The Family Law Act 1996 allows cohabitants the right to apply for an occupation order to the family home, providing a temporary transfer of property rights. The Children Act 1989 empowers courts to prioritize the best interests of children within relationship disputes.
- Be Legally Recognized: Marriage is not the sole path to property benefits. Couples can choose to become civil partners to gain legal protection.
Tenancy Considerations:
Understanding the differences between common-law partners and married couples in various aspects is crucial:
- Rights of Ejection: Common-law partners do not have the same rights as married partners in terms of ejecting individuals from the home without specific court instructions.
- Tenancy Agreement Transfer: Married partners have rights to request tenancy agreement transfer, unlike common-law partners, who lack such rights.
Homeownership Dynamics:
The rights and options available to common-law partners differ from those of married couples:
- Right to Stay: Sole owners among common-law partners have the right to stay in the home but may face eviction if no beneficial interest is identified.
- Equal Rights for Joint Owners: Common-law joint owners have equal rights to remain in the home, except in cases involving domestic violence or the best interests of children.
- Right to Remain for Married Couples: Home Rights automatically granted at the time of marriage afford married partners equal rights to stay in the marital home, irrespective of whose name is on the mortgage.
The Legislation:
The legal landscape provides additional avenues for protection:
- Family Law Act 1996: This legislation empowers cohabitants to apply for an occupation order to the family home under specific criteria. This allows courts to temporarily transfer property rights and impose restrictions on interactions within the family home and surrounding areas.
- Children Act 1989: Providing the court with powers to transfer ownership based on the best interests of the child within a relationship, this legislation allows the courts to prioritize the well-being of involved children in the event of a relationship dispute.
Occupation Orders Individuals experiencing domestic violence are eligible for heightened legal protection. Any partner facing domestic violence has the right to seek an occupation order, empowering the court to define access to the family home and its surroundings. The criteria for qualifying for an occupation order include:
- Ownership or Rent: You own or rent the home, and it is, was, or was intended to be shared with a spouse, civil partner, cohabitant, family member, fiancé(e), or parent of your child.
- Non-Ownership or Rent: If you don’t own or rent the home but are married or in a civil partnership with the owner and are currently residing in the home (referred to as ‘matrimonial home rights’).
- Former Spouse or Civil Partner: Your former spouse or civil partner is the owner or tenant, and the home is, was, or was intended to be your shared matrimonial home.
- Cohabiting Partner: The person you currently cohabit or cohabited with is the owner or tenant, and the home is, was, or was intended to be your shared residence.
For more information on eligibility and occupation orders related to domestic violence, refer to www.gov.uk/injunction-domestic-violence/eligibility-occupation.
The historical roots of common law marriage offer insights into its origins in medieval England. However, in modern times, the legal realities faced by cohabiting couples necessitate proactive measures to protect their rights and interests. Navigating these legal intricacies requires an understanding of cohabitation agreements, legislative support, and consideration of alternative legal relationships. As family structures evolve, seeking professional advice becomes crucial for couples to take proactive steps and ensure legal protection in the event of a breakdown in the relationship. A cohabitation agreement stands out as a paramount document, providing a structured framework that offers clarity, guidance, and legal support for cohabitants in their shared journey.