The report “Birth characteristics in England and Wales: 2021” records that in 2021 there were 624,828 live births. Of this number, 320,713 were registered to women outside of marriage or civil partnership. This represents 51.3% of the total births.
Does it matter?
In England, there is no such concept as “common law marriage.” If a couple chooses not to marry, whether or not they have children, they do not acquire rights against one another as a consequence of their relationship. In the event that they separate, cohabitees do not have recourse to the same menu of financial relief that their married counterparts enjoy. Instead, they have to rely on general principles of property and contract law. It is well known that many cohabitees are not cognisant of the legal reality and erroneously believe that they acquire rights as a result of living together.
By way of example, X and Y could move in together and have a child, Z. They could jointly decide that Y should give up work to care for their child. They separate ten years later. Y does not have any claims in her own right against X, for maintenance, capital payments or a share of their pension, despite having given up her career and been out of the labour market for ten years.
So what can Y do?
Y and Z move out of the family home (that is in X’s sole name) and live with Y’s mother. Y is keen to establish an independent living arrangement. How can she secure support from X?
- Maintenance for Z. Z will live with Y most of the time and spend every other weekend with X. X, as the non-resident parent (“NRP”), will have to pay child maintenance to Y for the benefit of Z. There are three ways this can be done:-
- Parental Agreement – the parents can agree on the amount of child maintenance between themselves;
- An application can be made to the Child Maintenance Service (“CMS”), which is a government scheme. They will calculate and collect child maintenance on your behalf; or
- If the non-resident parent earns in excess of £156,000 gross, then an assessment can be made to the CMS for a maximum assessment and then a subsequent application can be made to the court for a “top up” payment in excess of the maximum permitted under the statutory scheme.
- An application under Schedule 1 of the Children Act 1989. Under this provision, the court can make a variety of orders, including lump sum orders, orders for property transfer or settlement of property and periodical payments. The orders that can be made are all for the benefit of Z during their minority (i.e. until they are 18 or 21), although may include an element of ‘carer’s allowance’ for Y.
Therefore Y has the ability to apply for support from X, but that support is for the benefit of Z and not for Y herself. A court may order a settlement of property for the benefit of Z. As Z’s main carer, Y and Z would live in the property together. However, the usual terms upon which the property is settled will be to provide accommodation until Z reaches the age of 18 or completes tertiary education. At that point the property will revert back to X leaving Y with no right to remain in that property and no interest in its value. Similarly, child maintenance payments will come to an end at the same time. This can leave individuals, typically women, in a very precarious position at a stage in life when it is difficult for them to rebuild their career and economic independence easily.
There are a myriad of reasons why fewer couples are choosing to marry, including the cost of a wedding, prioritising careers and travel, and less societal pressure. However, it is well known that a staggering number of people believe that England has a system of common law marriage which simply does not exist. If you are intending to cohabit and/or have children outside of the formality of a marriage or civil partnership it is essential that you apprise yourself fully of the legal position in advance and ensure your position is protected so far as is possible. Our lawyers can offer advice on cohabitation agreements, applications for Schedule 1 provision and on property and trust interests.
