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Kylie, Travis and the myth of the 'Kommon' Law Marriage

You may be forgiven for not knowing which of the Kardashian sisters are currently getting hitched or putting their relationship on ice. For those of you who may be less up to date on the inner workings of the world’s most famous family, the most recent split to reach headlines is that of youngest daughter Kylie Jenner.

Kylie and musician, Travis Scott, are rumoured to have separated, a year after their second meteorologically-named child, Aire, was born (their first child, Stormi, is now aged five).

Kylie and Travis have never married. They are part of a growing trend of families choosing to ditch the ring and raise their children whilst cohabiting. Cohabitation is not just the preserve of the rich and famous, though. There has been a 22.9% increase in cohabiting families in the UK in the last decade and 1 in 5 family households in the UK are unmarried cohabiting couples with children.

The ubiquity of this new family model has led to a problematic myth arising: that there is such a thing as 'common law marriage'. In other words, that a couple like Kylie and Travis, who have been living with each other since at least 2018 and have two children together, would be seen as married in the eyes of the law and thus gain the same legal rights afforded to married couples. That is not the case.

Were Kylie and Travis in England and Wales, they would have limited financial claims in the family courts, referrable to the needs of their children. In their situation, no real hardship is likely to arise as both are independently wealthy. However, amongst the more than 3 million families in the UK who are cohabiting there will be a significant number of couples in unequal financial positions, many of whom have made career sacrifices for the benefit of the family that will have had an impact on that person’s self-sufficiency should the relationship come to an end.

If disaster struck, Kylie or Travis’ fortunes (and they were in this jurisdiction), the party in need could make a financial claim for the benefit of their children under Schedule 1 of the Children Act 1989. Whilst all couples (married and unmarried) can still apply to the Child Maintenance Service (“CMS”) for child maintenance, CMS claims are limited. A Schedule 1 claim is more expansive in that the court can order: periodical payments; lump sum payments; and settlements or transfers of property. Periodical payments may include educational expenses, such as school fees, any costs attributable to a disability, and even a ‘carer’s allowance’ for the parent.

The court must have regard to “all the circumstances of the case”, which include: the income, earning capacity and financial resources of each party; the financial needs, obligations and responsibilities each party has; the financial needs of the child; any financial resources the child may have; any physical or mental disability of the child; and their educational needs.

In recent years, reported decisions in the High Court reveal that claims under Schedule 1 are becoming more generous. In 2019 Sheikh Al Maktoum was ordered to pay Princess Haya Bint Al-Hussain £11.2 million per year by way of maintenance for their two children. In Collardeau-Fuchs v Fuchs [2022] EWFC 135 child maintenance of £23,100 per month per child was ordered. Whilst those may be outliers involving Ultra High Net Worth Individuals (like Kylie and Travis), large awards were also made in CA v DR [2021] EWFC 21 (£150,000 per year) and in Re Z [2020] EWFC 80 (£240,000 per year). These decisions may reflect the times and the growing number of unmarried couples with children. The changing approach does not, however, provide unmarried couples with the same level of financial protection as those who tie the knot.

The ONS said 2021 is the first year the number of live births registered outside marriage or civil partnerships has exceeded those registered within them since records began in 1845.

It follows a long-term trend of declining marriage rates and increasing numbers of cohabiting couples seen in recent decades, the ONS added.

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