Joanne Major, Principal of Major Family Law, the North East’s top divorce and children law specialists, comments in The Northern Insight, it is one of the most common legal conceptions in this country – along with possession being nine tenths of the law – that there is an actual legal status of common law wife or common law husband.
Not since the passing of The Marriage Act in 1753 has any form of relationship union been legally recognised as marriage unless a ceremony took place in a parish church or chapel, conducted by a minister of the Church of England with banns called for three weeks, or a Special Licence obtained from a Bishop if a shorter time scale was required. Parental consent for any person under the age of twenty-one was also required and the Act decreed that failure to comply with the rules rendered a marriage void.
And yet, almost three centuries later, public perception persists in its erroneous belief that couples who live together for a certain amount of time – which incidentally varies from two years to 21 years depending on who you ask – somehow attain a legal status comparable to a married couple in the eyes of the law.
Whilst in this age there is little or no moral prejudice against couples who live together without marrying, it should actually be a positive, planned decision rather than a default position for people who object to marriage as an institution or for personal reasons.
Because, whatever the reason for not formalising the relationship with a marriage, the legal effect remains the same: no matter how long the couple live together as man and wife, they do not acquire any kind of elevated legal status or financial protection if the relationship subsequently breaks down.
Whilst the Courts have wide ranging powers and discretion to make financial provision for married parties who have separated, the same cannot be said for cohabiting couples, irrespective of whether those couples have children together.
Financial disputes between separated cohabiting couples fall within the remit of property law and trust law, both of which are strict in their interpretation and make no allowance for family structure or circumstance. The procedure for pursuing a claim through these channels is often complicated and costly, producing results which fall far short of expectation or indeed need.
Couples who choose not to marry, therefore, have only one real option open to them to ensure any form of future financial security and that is to take early legal advice. Rest assured, this is not a sales pitch; on the contrary, it may be the soundest piece of advice you ever pass on to anyone.
Couples contemplating cohabitation would be well advised to discuss with each other any number of practical and financial issues ranging from the ownership of the property in which they will live and how the outgoings and upkeep will be paid, to what will happen if and when the couple have children and how previously owned property by each of the parties will be treated.
The terms of this agreement are then embodied in what is known as a Living Together Agreement, or Cohabitation Agreement. Despite any criticism to the contrary, such agreements are not cynical, pessimistic or money grabbing; they are in fact a necessity. And for those who are already cohabiting – even if they have been for some considerable time – it is not too late to take advice and have an Agreement drawn up. It’s only too late once the relationship breaks down and at least one of the parties is left counting the cost.