Marriage – the outdated union?

Feb 2, 2024

Fewer people these days are getting married or becoming civil partners.

Figures released by the Office for National Statistics show that, for the first time, numbers have dropped to below 50% of the eligible population in England and Wales. It’s the first time this has happened, leading some to call for an overhaul of the law relating to cohabiting couples. 

The problem is that, with so many people now choosing to live together rather than marry or enter into a civil partnership, the law doesn’t seem to fit. Cohabitation is not well catered for – certainly when compared to marriages and civil partnerships and it can mean cohabitees are vulnerable, particularly as many don’t know they are far less protected in law. 

The concept of ‘common law husband and wife’ has caused a lot of confusion. Living together ‘as husband and wife’, ‘husband and husband’, ‘wife and wife’ (or as civil partners), isn’t the same as being in one of those unions. Regardless of how long you’ve been in relationship, how many children you have, how you share the chores or pay the bills, the legal status is hugely different and the law continues to make this distinction. 

There are many ways in which the law treats cohabitees less favourably. These include: 

Inheritance

If one cohabitee dies without having made a will, their partner won’t automatically inherit non-jointly-owned property. Contrast that with marriage or civil partnership, where the surviving partner will usually inherit. Cohabitees who want to their partner to benefit after their death should write that into their will. 

The family home after separation

A cohabitee who doesn’t own, or part-own, the property would need to prove a ‘beneficial interest’ before being legally allowed to remain living there (although different considerations apply if you have children). A married person or civil partner in the same position has ‘home rights’ entitling him or her to stay in the property. 

Finances after separation

When cohabitees separate, neither has an ongoing legal duty to provide ‘maintenance’ to the other; there’s no duty to support them, financially. The opposite is true in the case of marriage and civil partnership. 

This imbalance will remain until steps are taken to provide better legislative protections for cohabitees and therefore people living together should seriously consider putting in place a cohabitation agreement. This is a formal legal document that sets out things like: 

-          How you’ll each contribute to the running of the home (bills, mortgage etc)

-          What should happen to the family home if you split up

-          How the things you own should be divided up 

To talk to us about divorce, dissolution, cohabitation rights or cohabitation agreements for a FREE 20-minute appointment, contact us on family@bsandi.co.uk or call on 01264 353411.


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