The common law marriage myth

Simon Brown and his partner Dragana split in 2008 after 15 years together. They lived together in a £500,000 house bought by Simon and owned in his sole name, had a son together (now aged 15) and Dragana shared Simon's surname. The only thing the couple did not do was get married.

At a recent High Court hearing, Dragana's barrister said that her client had thought that after living with Simon for so long and having a child with him, she would have rights as his common law wife.

The belief in common law marriage is surprisingly widespread, and has defied government information campaigns for many years. Many clients, even those who are lawyers themselves in other areas, come to see a family law solicitor for the first time genuinely believing that such a concept exists and will protect them. The reality that it is possible to spend your entire adult life with someone, share a house with them and have children with them, but have only very limited claims on them for financial security once your relationship comes to an end is something clients, and the public generally, often see as unfair.

Today, cohabiting but unmarried parents are the fastest growing family type in the UK, reaching 2.9 million by 2011 according to the Office of National Statistics. 1.8 million dependent children are living in cohabiting couple families. Despite this, the law relating to cohabitees is uncertain and complex and provides scant protection in comparison to the financial remedies available on divorce. Public policy concerns about devaluing the institution of marriage have stalemated proposed changes to the law to extend greater protection to cohabiting couples.

New test case

The starting point for the court after a long marriage with children would be a 50/50 division of assets built up during the marriage. Dragana could also make a claim for ongoing maintenance for herself and child maintenance for their son.

Without a marriage ceremony, Dragana and other men and women in her situation have to fall back on a combination of financial remedies drawn together from different statutes and often complex case law. For many, unless they had children together, there will be no financial claim which they can make, regardless of the length of the relationship, the extent of their financial dependence on their partner, and their ability to support themselves now the relationship has ended. Others would face complex and expensive litigation in order to establish their rights to a share in a property to which they may have contributed financially, but never acquired a legal interest over.

If Dragana's name had been on the title deeds to Simon's house as a joint owner, or if she had contributed directly to the purchase price or to the mortgage payments, then she could have made a claim under property and trust law to recover her contribution or to have her share in the house's ownership recognised. There have been many cases involving disputes by cohabitees over the ownership of their shared home, and the outcomes have been varying and uncertain

Written commitments

If someone has moved into their partner's house, contributed to household bills perhaps but made no direct contribution to the mortgage or purchase price, then it is even more difficult to establish any claim to a share in the property, regardless of how many years you have lived there. Verbal commitments often don't carry any legal weight. Documents or letters written at the time and recording the intention that one party should have a share in the property are much more weighty, but the most useful thing of all remains for the house to be owned in both parties' names. A declaration of trust can record the percentage shares which each person holds, and can go into as much detail as the parties need.

Worryingly, few cohabitants take steps to protect themselves in this way, probably because they do not understand the legal necessity for doing so. A think tank report in 2006 found that only 15 per cent of cohabiting couples had a written agreement setting out their shares in their house. Only one in ten had changed their will.

For married couples, by contrast, it is irrelevant whose name is on the title deeds and who has contributed what to the purchase price. All the properties which either party owns, along with all of their other assets, are in the matrimonial pot to be divided.

For cohabitees who have no children together, their financial claims begin and end here, with any claims they may have to their shared home. A man or a woman may live with their partner for decades, give up their own job to support their partner's career, move around the country to follow their partner, support them financially, but when the relationship ends neither has any ongoing responsibility towards the other regardless of their age, their financial circumstances, or their ability to support themselves. Crucially, there is no entitlement to a share in any assets accrued by the other partner during their life together, and no entitlement to maintenance.

Unsatisfactory solution

Fathers (as it usually is, although the law applies to mothers and fathers equally) who do not live with their children full-time have an obligation to pay child maintenance, regardless of whether they ever married the mother. Mothers in this situation (and fathers, of course) can make a claim for one-off expenses associated with the child's birth, such as medical expenses, buggy, car seats and the like.

The main remedy available to unmarried mothers and fathers is that they can make a claim for housing. This does not entitle the parent to a house in their own name, but if their claim is successful it means that the other parent is required to purchase a suitable house in their own name which is held in trust, in which the other parent and the child are entitled to live, rent-free. This is usually until the youngest child is 18 although it can be for longer, for instance until the youngest child finishes university. The parent who bought the house is then free to do what they like with it, and the children and the other parent have no further right to live there.

This is often an unsatisfactory solution for both parents, one of whom has to tie up equity for many years, while the other has a home but no security and the constant knowledge that they will have to leave once their children are 18.

Plans to fill this gap with a new law, which would give some of the rights afforded to married couples to cohabitees, have encountered opposition on both political and religious grounds. Many believe that as the security and protection of marriage is now available to both same sex and opposite sex couples, it should not be forced on couples by default. After all, some couples may deliberately choose not to marry in order ?to ensure that they are protected from claims by the other and in order to safeguard their own assets.

There is no likelihood of new legislation in the near future which would change the position for unmarried cohabitees. Changes will continue to come through case law, for those clients who are prepared to spend time and money pursuing their shares in family properties, and for those clients, like Dragana, who are prepared to fund a test case.

For many, it will still be the case that the breakdown of a relationship leaves them ?with no financial security, in stark contrast to the wide-ranging remedies available after even the briefest of marriages. Dragana's dispute with Simon is unlikely to change ?the law on any of these points, but it may increase cohabitees' awareness of exactly where they stand.