Cohabiting unmarried couples are the fastest growing family type in the UK but a large proportion of people are unaware of their legal rights within these arrangements. Almost half (46%) of people mistakenly believe that cohabiting couples form a "common law marriage" and enjoy the same protection as married couples, according to a survey by the National Centre for Social Research (NatCen) in January 2019. That figure has remained static since 2005, despite a huge growth in the number of cohabiting couples in the last 20 years.
Of those surveyed by NatCen, the knowledge gap was widest among cohabiting couples with children, with 55% believing common law marriage exists. In reality, common law marriage – a term often used to describe unmarried couples who live together – grants couples "no general legal status". Couples don't have the same rights as those who are married or in civil partnerships when the relationship breaks down – and it's women cohabitants who often bear the brunt. Women are more likely to stall their careers while raising children, become financially dependent on partners and end up being the primary caregiver for children, for instance.
There are big legal differences between marriage and cohabitation, as Citizens Advice highlights: everything from access to bank accounts and inheritance (if one partner dies without leaving a will), to your parental responsibility can be affected. "Despite the absence of legal protection for cohabitants regularly hitting the headlines, levels of awareness are still worryingly low," said Graeme Fraser, chair of Resolution's Cohabitation Committee. Fraser believes the latest statistic highlights why the law desperately needs to be changed and is calling on the government to "introduce at least some basic legal rights" to protect the millions of cohabitants at risk, who "could be left with a nasty shock if their partner passes away, or their relationship comes to an end".
One woman who realised the difference between marriage and cohabitation too late is Lalena Walkley, 37, a chef based in Cambridge, who lost her long-term partner, Adam, in a car crash in February 2018. He left behind the couple's 7-year-old daughter and 6-year-old identical twin sons. Lalena is a member of the charity Widowed and Young (WAY), which provided peer support following Adam's death. She shared her experience – and the impact of the dearth of legal rights for cohabitants – with Refinery29.
"Adam was killed in a freak car accident on a Friday night. I had been waiting for him to return home when the doorbell rang; I thought he had forgotten his keys. Instead, I was greeted by two policemen, one of whom abruptly told me Adam was dead, and in a few seconds my life changed forever.
Adam and I first met back in 1998. It was love at first sight for me. He was very shy, but we quickly began dating and then due to family complications I ended up living with him and his family for almost two years. We broke up over his love of cars and I moved out, but started dating again five years later. This time forever.
Adam and I had been living together since 2007. I'd been working in France for six months as a chef in the Alps and my mother died while I was there. Adam moved in with me. We finally got our first flat in 2009, four months before our first child was born. Thirteen months later we had twin boys and moved into a second flat, which we quickly outgrew, so in 2015 we finally got a three-bedroom house, our 'forever' home. Life was happy, really happy.
We still had fire. Adam worried that by being married we'd lose that.
Adam's parents didn't marry until they'd been together for over 20 years, and my own parents weren't married – my father was killed in a road traffic accident when I was six – so marriage never seemed important. Adam always thought that being married was just a bit of paper, and that by ticking the 'common law' box on forms it meant we were basically married in the eyes of the law. How wrong he was, because there is no 'common law' when it comes to death.
We'd been together so long that we felt married – we did the things married people did and we were passionately in love. Some marriages don't last as long as our relationship did and we envisaged it lasting forever. We still had fire. Adam worried that by being married we'd lose that, as he said he'd seen it happen to so many people once they were married. Adam was also very shy in front of crowds, he didn't like a fuss.
I'm now a single mum with three children, yet I'm not entitled to anything.
What bothered me most was not having the same surname as my children and people assuming I was a single mum because of it. Now I am, but not by choice, by a devastating loss. I regret not marrying Adam – he was my husband in my eyes, the love of my life. The police were great after he died and recognised me as his next of kin. I couldn't fault the way they dealt with me. The banks were great with closing accounts but some companies were ignorant, and by law I couldn't be Adam's next of kin. I had to hire a solicitor with his mum's help to put any money from settlements into his children's names.
I'm now a single mum with three children, yet I'm not entitled to anything. The government doesn't recognise me as a widow, so I can't receive the Widowed Parent's Allowance, which is for the children, not me. I've returned to work full-time to support my children and try to pay a mortgage, but by doing so I now have to unwillingly put my three children into after-school clubs three days a week, at a cost of £500 a month.
I would advise anyone who is cohabiting and has children to get married. If you don't want a big day and a fuss, go by yourselves to the registry office and do your kids a favour, because if anything happens to one of you, it is soul-destroying. Not only do you have to deal with losing that person, you have to figure out how to survive.
The government needs to get with the times and recognise that it's not modern day tradition to be married. A lot of couples cohabit. Cohabiting couples should have the same rights as married couples, although with restrictions. You can't expect a couple that's been living together for two weeks to be given the same rights as a couple of 10 years. That's just not right. Let's hope the law gets changed soon to protect families, not punish them. We are grieving after all."
Many lawyers, charities and campaign groups also believe the law is behind the times. Joanne Radcliff, family law partner at Brabners LLP and Resolution member, says it's common for clients to be "unaware of their true legal status" because of the myths around common law marriage. "As a cohabiting couple you don't have the same legal remedies available to you if your relationship were to break down. For example, you cannot claim maintenance as a spouse, or share in each other’s pensions. In many scenarios you would also not be entitled to a share in a family home, if the property is held solely in your partner’s name and you didn’t directly financially contribute to its original purchase, even if you paid other household bills or outgoings for your family."
Radcliff agrees that it's women who are most likely to suffer. "Even now, when women are more financially independent than they've ever been, women may be the more financially vulnerable partner in a couple. It's common for them to have taken a career break while they raise children. This can result in their earning capacity reducing and their pension provision suffering. As a cohabiting partner, there are no options available to them when the relationship ends to be compensated in any way for that."
Georgia Elms, spokeswoman for WAY, is calling for urgent legal change. "We believe it is absolutely unjust that cohabiting couples are not entitled to receive the same financial lifeline as married couples, who have paid exactly the same amount into the National Insurance pot from which this money is drawn. Their children are being penalised and discriminated against for a choice made by their parents – many of whom are simply unaware that their decision not to get married would have such a devastating financial impact on their family if one of the couple happens to die."
But legal rights aren't always at the forefront of your mind at the beginning of a relationship, as Relate counsellor Rachel Davies explains. "The issue of legal rights isn't something that comes up much when things are going well, but often becomes more important when couples are thinking of splitting up and looking at how they are going to split time with the children or who is going to remain in the house."