Doing Away With The Myth Of The Common Law Marriage – Family Law

Doing Away With The Myth Of The Common Law Marriage – Family Law

The myth of the common law marriage

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

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

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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

https://www.mondaq.com/uk/family-law/1222392/doing-away-with-the-myth-of-the-common-law-marriage