Doing away with the myth of the common law marriage

Doing away with the myth of the common law marriage

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James Harbottle
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The myth of the common law marriage

Ian Walker Director/Solicitor/Mediator /Arbitrator Law Society Children Panel and Mediation Accredited
Ian Walker Director/Solicitor/Mediator /Arbitrator Law Society Children Panel and Mediation Accredited

It is one of the most popular and enduring myths surrounding family law in this country: that cohabiting couples automatically acquire the same rights as married couples, provided they live together for long enough – the so-called ‘common law marriage’.

A British Social Attitudes Survey carried out in 2019 demonstrated the prevalence of the myth. It showed that 46% the total England and Wales population wrongly assumed cohabitants living together form a ‘common law marriage’. And in households with children, that figure rose to 55%.

But there is no truth whatsoever to the myth.

Significant consequences

And believing the myth can have significant consequences, with many falsely thinking that they have legal protections, which turn out to be non-existent.

Those non-existent protections relate both to the breakdown of the relationship and to the death of a partner.

On the breakdown of a cohabiting relationship one party does not, for example, have an automatic right to seek a share of the family home or financial support from the other party, as they would have if they were married or in a civil partnership.

This can mean that the financially weaker party may be left in a dire financial situation when the relationship breaks down and, when they lived in a property owned by the other party, even homeless.

And on the death of a cohabiting partner the survivor may find themselves having great difficulty accessing a survivor’s pension, or even keeping the family home.

And these problems do not just affect a small minority. Since 1996 the number of couples in the UK living together as cohabitants has more than doubled to 3.6 million, now representing around one in five couples living together.

Calls for reform of the law  Myth of the common law marriage

There have long been calls for reform of the law to address these issues.

The latest such call has come from the House of Commons Women and Equalities Committee, a cross-party committee of MPs which holds the Government to account on equality law and policy.

The Committee recommends that the Government urgently launch a public information campaign to highlight the legal distinctions between marriage, civil partnership, and choosing to live as cohabiting partners.

But whilst such a campaign may alleviate the damage caused by the myth of the common law marriage, in the end the only real way to deal with the problem is to give proper rights to cohabiting couples.

Over the years such a move has attracted considerable opposition, particularly from those who believe that it will undermine the importance of marriage. But no one is suggesting that cohabitees should have the same rights as those who are married or in a civil partnership.


Recommendations Doing away with the myth of the common law marriage

The issue was looked at by the Law Commission in 2007. The Commission recommended that cohabitees who had had a child together or had lived together for a specified number of years be given certain basic rights to share the pluses and minuses of the relationship.

Thus under the scheme the applicant for financial relief would have to show that the respondent retained a benefit, or that the applicant had a continuing economic disadvantage, as a result of contributions made to the relationship.

This would be very different from the situation on a divorce, where the applicant is entitled to a share of the assets of the marriage, and can base a claim simply upon their financial needs.

And the Law Commission also recommended that cohabitees could choose to opt out of the scheme if they wished.

The Committee is now recommending that the Government should implement such a scheme.

As to the problems surrounding the death of a cohabiting partner, the Committee is essentially recommending that cohabitants are put in a similar position to married couples and civil partners so that, for example, they have the right to inherit the family home after the death of the partner.

As the Chair of the Committee stated, it is high time that the Government recognised the shift in society towards greater numbers cohabiting, and implemented these reforms, to ensure that cohabiting families have better legal protection.

Deciding not to marry is a valid choice, and not one which should be penalised in law.