Common law marriage – the myth that won’t go away

family law

The general public may (quite understandably) hold many misconceptions about the law. However, there can surely be few misconceptions that are so widely held and repeated than the myth of the “common law marriage”. Accordingly, anything that helps to dispel that myth must be welcomed.

The latest such thing is a House of Commons briefing paper “Common law marriage” and cohabitation. I have mentioned a House of Commons briefing paper here before, when I wrote last month about a paper relating to the rise of the litigant in person. Like that paper, this one tells us nothing new (briefing papers are intended to provide MPs and their staff with an impartial briefing on a subject in order to inform them about that subject), but once again I think its contents bear repeating, and not just to dispel the myth of “common law marriage”.

“Common law marriage” is, however, the first topic of the paper, which explains that:

“Although cohabitants do have some legal protection in several areas, cohabitation gives no general legal status to a couple, unlike marriage and civil partnership from which many legal rights and responsibilities flow. Many people are unaware of this fact.”

As the paper explains, attempts have been made to make the public more aware of the fact. This is not just some pedantic effort to educate people on legal niceties – as we shall see, knowledge of the law (or lack of it) in this area can have vital consequences for those who choose to cohabit, rather than marry or enter into a civil partnership.

The paper then goes on to provide some statistics for the number of cohabiting couples living in the UK, both opposite sex couples and same sex couples. The figures show very significant numbers, and that those numbers are increasing, particularly in the case of same sex cohabiting couples. In 2015 there were some 3.1 million opposite sex cohabiting couples and some 90,000 same sex cohabiting couples. By way of comparison, there were 12.5 million married or civil partner couple families in 2015, although the cohabiting couple is the fastest growing family type. Clearly, many people are going to be affected by the law relating to cohabitation.

What that law is comprises the subject of the next section of the paper, which deals with ten areas, from property rights to parental responsibility. I won’t repeat them all here, but the picture isn’t very rosy for the cohabitant seeking legal redress. For example, we are told that unmarried couples have no guaranteed rights to ownership of each other’s property on relationship breakdown, that the surviving cohabitant has no automatic right to inherit their late partner’s estate (see below), and that a cohabitant cannot rely upon their former partner’s contributions for the purposes of State Pensions.

The paper next briefly mentions that cohabitants can seek to protect their legal position by entering into a cohabitation agreement, although it warns that whilst the courts are showing more willingness to take account of such agreements, there is still no certainty that they would enforce one.

The last section of the paper that I want to mention details the recommendation of the Law Commission to provide cohabitants with limited financial remedies upon separation. Unfortunately, the government decided not to implement the recommendation (at least not yet), just as it later decided not yet to implement another Law Commission recommendation to extend inheritance rights for some cohabitants.

So cohabitants remain in a precarious legal position, the mythical “common law marriage” providing them with no protection whatsoever. The need for reform has been spelled out very clearly by the Law Commission and many others, yet nothing is being done. Until it is (and I remain confident that change is inevitable, just as with same-sex marriage), cohabitants will continue to suffer injustices, under a government that doesn’t seem to care.

The briefing paper can be found here (there is a download link at bottom of the page).

Photo by Pradip Malde via Flickr

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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2 comments

Luke - February 17, 2016 at 4:04pm

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“Common law marriage – the myth that won’t go away”
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It’ll go away if the effort is made to make it go away – but the myth is perpetuated because the public are ignorant – and nobody makes any money out of them being informed.
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All that would need to happen is for the legal system to lobby the government to make marriage and divorce laws part of the national curriculum in the citizenship programme and to make sure within that that the myth of common law marriage is hammered home. Add to that a national TV advertising campaign by the government and the job is done.
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Why do barristers stand on the street with placards protesting Legal Aid cuts but don’t do anything about this ? Simple, it doesn’t affect them personally. I’m not singling them out, they are no better or worse than any other profession in our society – I’m just fed up with the faux hand-wringing on this subject when it’s so easy to solve.
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Follow the money…

Sovereign Citizen - April 2, 2016 at 8:54pm

Common law is simply the law of the land. In America its Constitutional Law. What people don’t realize is that anyone a part of the BAR association is actually practicing British Maritime Law and not Constitutional American Law. This occurs mostly because Americans do not know the law themselves, nor do officers. They are actually breaking the law to enforce policy (police). We have always had inalienable Rights like the Right to Travel (nagolbud.com/library/right-to-travel-common-law/), or the Right to Bear Arms (nagolbud.com/library/constitutional-carry-of-firearms/); but we consent away those rights under contracts like the drivers license.

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