What we really mean by ‘common law marriage’
By:1 commentNovember 20, 2017
Most of us have better things to do on a Saturday night than think about law. Go out for a drink, watch a film, or even watch the mind-numbing Strictly Come Dancing, if that is really your thing. Okay, perhaps the last of those is not better than thinking about law.
Whatever, it is a sad truth that some lawyers do spend their Saturday evenings thinking about law. Take last Saturday evening, for example. Some innocent at the Law Society’s Find a Solicitor website was foolish enough to post a tweet saying that there’s no such thing as a common law marriage. Nothing wrong with that, you might think. Wrong. The tweet attracted the savage ire of a certain well known family law Queen’s Counsel.
What could possibly be the problem? All the tweet was trying to do was to get out the important message that, contrary to popular belief, by simply cohabiting for a certain period of time the law does not automatically recognise you as being married, and does not therefore grant you the same rights as married couples. People who are in, or are contemplating entering into, a cohabiting relationship really need to know this, rather than be fooled by the myth of the ‘common law marriage’.
The problem for the Queen’s Counsel was that the tweet was not one hundred percent legally accurate. You see, there are technically things that could be accurately described as common law marriages. A read of the lengthy Twitter thread (yes, I really did have nothing better to do on my Saturday night) gave a couple of examples. One was where the common law can recognise overseas marriages that fail the strict formality requirements of ‘real’ marriages.
Another, even more improbably, was pointed out by a different Queen’s Counsel:
“Members of the Royal Family are excluded from the marriage acts. As Prince Charles could not get married in a registry [sic] office he and Camilla have a common law marriage.”
Okay, so there may be a handful of marriages that can be described as ‘common law’. However, the number is vanishingly small, when compared to the 12.9 million married or civil partner families in this country or, as the Law Society FAS pointed out in their tweet, the 3.3 million cohabiting couple families.
But in the end, all of this is little more than lawyers being pedantic (not for the first time, I hear you say). Yes, it is possible to accurately describe these things as ‘common law marriages’, but it is also possible to accurately describe Winston Churchill as a ‘bricklayer’. But no one would reasonably do so.
And as a legal academic quite rightly pointed out on the thread, what the public and, indeed, most lawyers understand by the term ‘common law marriage’ is what I described above: a marriage somehow recognised by the law simply because two people have lived together for a certain period of time. That is what we really mean when we use the term.
Why is all of this important? It’s Important because we mustn’t do anything to dilute the message that cohabiting couples do not have the same rights as married couples, no matter how long they have lived together. In fact, many have no rights at all and can be left in dire straits at the end of a relationship, as I have explained here just recently. As I said above, and I will unashamedly repeat again: people who are in, or are contemplating entering into, a cohabiting relationship really need to know this, rather than be fooled by the myth of the ‘common law marriage’.
So let’s keep the message clear and simple: there is no such thing as a common law marriage.
Photo by Jason Howie via Flickr under a Creative Commons licence.
November 20, 2017
Categories: Family Law