Advice Centre

‘COMMON LAW MARRIAGE’ Does the concept really exist?

Posted by:
Posted in: Family and children
Date published: 01/04/2019
Common Law Marriage

Living together but not married (AKA ‘Common Law Marriage)? What rights do I have?

Unmarried co-habiting couples is an increasing type of family choice in the UK, yet it appears, that in the event of separation, there is no adequate protection for such couples in the current family law. Such couples frequently assume the common myth of ‘common law marriage’ and are often unaware of their lack of rights, in comparison to married couples.

The gap in the law has a particularly detrimental effect on the financially vulnerable partner, most commonly the woman who had to stop or limit employment in order to care for the children and the household. It is utterly common for such partner to assume they are entitled to the assets shared by the family, but this is not automatically the case.

For example, if the property is registered in one partner’s name, the other is not entitled to anything unless the cohabitee can show that there was a ‘common intention’ that they should have a beneficial interest in the property, and relied on that common intention to their prejudice. The burden of proof is on them and in practice, it is often difficult to provide sufficient evidence. This is particularly the case since courts do not have the power to rely on factors such as the length of relationship or contributions made to that relationship.

In contrast, married couples will not have this issue as in case of a dispute, both parties are entitled to half of the matrimonial assets accumulated over the years, providing a fairer outcome for both parties.

Need for reform to marriage laws?

The landmark case that triggered the need for reform in the law on cohabitees was Burns v Burns (1984). The case involved an unmarried couple who lived together for 17 years and brought up their two children. The woman made no financial contributions to the family home and so in case of separation, it was held she acquired no interest in the house.

Although, the Court of Appeal acknowledged that ‘over a very substantial number of years’ the complainant ‘may have worked just as hard as the man in maintaining the family’, it was held there was no express agreement and some substantial contribution was required before an intention can be imputed that she was to take a share in the property.

Unsurprisingly, the current law had often been referred to as discriminatory and unfair, as parties are open to being left with nothing, in case of separation. The law is indeed complex and legal fees are high which means couples that are less well-off will not be in a position to pay for resolution of such disputes.

Will the pressure for reform change the outdated law?

The pressure for reform dates back to 1984, yet the law remains outdated. Efforts to introduce legislation have so far floundered. Numerous bills have been introduced, such as the Cohabitations Rights Bill which is awaiting a second reading in the House of Lords.

Summary

It is evident the law on co-habiting couples’ rights is obsolete and in need of reform. If you are an unmarried partner and wish to bring a claim based on cohabitees rights, remember it is crucial to obtain professional advice and support of a Solicitor within this practice to achieve the best outcome.

For a confidential discussion about this area of law, please contact Melissa Cunningham in the family team on 0333 358 3062 or m.cunningham@imd.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Published by:

Iwona DurlakSenior Partner

Family Law – IMD Solicitors LLP


Call now to discuss your case: 0330 107 0107
Request a call back Mon - Fri: 9am -5:30pm

Example of cases we have dealt with:

F v F - Acted for a German husband in a complex financial remedy matter. He decided to instruct IMD Solicitors after he had lost trust in his previously instructed solicitors and feared that he would not achieve a favourable outcome from the proceedings. The relevant assets were spread across the globe with some located in the UK (including a multi-million pound business), Gibraltar, Spain, Dubai, and Poland. The overall value of assets exceeded £24 million. The husband had been cut off from the matrimonial assets and excluded from control of the business that had been established by his family. The case involved the instruction of numerous experts, for business valuations, Capital Gains Tax reports, and opinions on the enforcement of orders in foreign jurisdictions, and dealing with several applications, including applications for orders to freeze assets, prevent the disposition of assets, for the joinder of parties, and to litigate conduct issues. The final result exceeded the client’s expectations.
L v L - We were instructed by a mother in a complex international children matter. She was required by orders of the UK courts to return the child to the UK from Poland. She had travelled with the child to Poland but, following unsuccessful application to extend her stay there in August 2017, she decided not to return to the UK because the child disclosed sexual abuse by a member of the paternal family and the father. In September 2018, the Polish court dismissed the father’s Hague Convention application for the child's return on the basis of Article 13(b), a decision which the father appealed. In March 2019, the father applied to the UK High Court for an order for the child’s return pursuant to the procedure set out in Article 11(6) – (8) of the Brussels IIA Regulation. Despite the father's unsuccessful Hague Convention application in Poland, the UK court ordered the return of the child. Article 11 does not allow the court of the returning country much discretion. After all of this, the mother instructed IMD Solicitors to apply to discharge the orders of the UK Court for the return of the child. Even in the face of the fact that most applications to discharge such return orders fail, we succeeded. We are currently awaiting a decision in the UK courts on a further application for the transfer of jurisdiction to the Polish courts where the mother resides with the child.
G v P - We represent a Spanish mother in respect of an urgent application for a Child Arrangements Order and Specific Issue Order in the UK seeking the relocation of the child to Spain. This was after the return of the child to the UK under Hague Convection proceedings which this mother lost in Spain. She was asking for an order for the relocation of the child back to Spain and an urgent interim Child Arrangements Order to allow her to see the child pending the final outcome of the UK proceedings. IMD successfully argued that, regardless of the return of the child to the UK under the Hague Convention, the mother should be allowed unsupervised overnight contact with the child. We were delighted to be able to secure her contact with the child for Christmas and she said that it was the best Christmas gift she could have wished for. The outcome of the application for the relocation is pending.
S v V - We currently represent the father in Child Arrangements Order proceedings issued by the mother in relation to variation of a UK order made in the face of numerous other international proceedings. He is an Italian National who has been living in France for the last 20 years and the mother is a Lithuanian national. The child is now 11 years old and proceedings concerning the child have been ongoing in various jurisdictions for the majority of the child`s life. Contested divorce proceedings including child arrangements took place in Monaco. The French Court and authorities were also involved, and various proceedings had been ongoing between parties since 2013 in France and Monaco. The parties’ divorce was pronounced in Monaco. Thereafter, in December 2020, the mother submitted an application to relocate to England with the child, and the relocation took place in June 2021. Upon relocation, the she lodged a child arrangement order application, seeking to register a judgment made in Monaco and to vary the same in respect of the contact arrangements between the father and the child. The father seeks for the child’s return to Monaco. Due to the parties’ mutual allegations and the associated international elements, various authorities and courts that have been involved in the case, the local authority has become involved with the family and a guardian has been instructed to represent the child in the UK proceedings. At present, these proceedings in England are ongoing and the outcome of the professional reports regarding the family are awaited.  
P v P - We have acted for the Respondent Husband in relation to the financial remedy proceedings in the UK. The parties had various assets in the UK and Romania consisting mainly of the portfolio of properties but conduct issues were raised by the Wife due to a business of the Husband over which she had lost control and her allegations of dissipation of assets. The value of assets excluding the business were in a region of £3 million. 
K v K - We act in financial remedy proceedings for a wife who is a Polish national. The matter's complexity mainly comes from a dispute between the parties around land in Poland. Its value was initially in dispute but was then assessed by a joint expert to be in the region of half a million pounds. The total assets in this case are estimated to be worth over £1 million. The land in Poland is a subject to contract with a third party and is being leased as a photovoltaic (solar) farm. The division of the land to achieve an equal share of the assets is complicated due to the contract in place and plans for the future use of the land. Currently the parties are awaiting a final hearing but efforts are being made to reach a settlement with the aid of alternative dispute resolution and in order to save the parties money and avoid further delays.
R v O - We acted pro bono and worked together with a law firm in Poland to ensure that the Costa Rican Mother regains access to her child. The Mother's only child was abducted from the UK in 2014. The Mother was successful with the abduction case and the UK family courts ordered the return of the child. The orders were recognised in Poland but unfortunately due to various issues with the Mother's immigration status and court's delays in Poland, the orders were never enforced. The Mother was facing removal from the UK and prospects of never seeing her child again. We have corresponded with various courts in Poland dealing with international abduction matters and we decided that an application for contact should be issued rather than any proceedings for further enforcement of the orders, as the Mother had not seen the child for around 7 years. At the same we secured the Mother's stay in the UK making successful outside of immigration rules application to extend her stay. We now receive regular photos from the Mother with her daughter, as face to face contact is taking place. We helped to secure an order of the Polish courts for the Mother to see the child regularly in person, whilst when she instructed us she was facing a prospect of never seeing her child again and being deported to Costa Rica.

Awards and Accreditations