We’re talking divorce and we weren’t even married: The Common Law Marriage myth
Here’s an interesting statistic: 46% of the public believes that common-law marriage exists.
That’s according to a recent British Social Attitudes Survey, carried out by the National Centre for Social Research.
But the reality is that common law marriage no longer exists, and there is no automatic entitlement to financial protection as a result of living with somebody, however long you have cohabited.
This is the stark reality of cohabitation law and something which we, my colleague Sarah Pennicott and I, Jackie Mensah, as experienced family lawyers, have to tackle and address each day with our clients, with a view to bringing about a clear and fair outcome for them and their families.
In this blog post, we will shed light on the legal framework surrounding common law partnerships and the need for reform.
The Concept of Common Law Marriage: A Historical Perspective
In ancient Greece and Rome, private agreements were considered “marriages” based on personal connections and property.
Similarly, medieval Europe recognised marriages where individuals simply regarded each other as “husband and wife.”
However, England abolished common law marriages in 1753 under the Marriage Act, mandating marriages to be conducted by Church of England Priests.
Exceptions were made for Scotland and certain overseas territories like Canada and the United States, where common law marriage continued to exist with variations across different states and provinces.
It is still the case that different states within Canada and the US deal with the concept of marriage in slightly different ways.
Even with the passage of time and the classic concept of common law marriage being outdated, it is frequently referred to in the media.
Over time, various definitions and labels have been attached to it. For instance, in Latin, an agreement to marriage is known as “per verba de praesenti” and is more commonly known as a “de facto” marriage.
However one refers to this construct, it remains that English family law does not confer rights, entitlements and benefits to those who have formed such a relationship and are “just” living together.
Common Law Marriage Statistics
Perhaps it is not surprising that the Office of National Statistics reported in 2021 that over 22% of those cohabitating were unmarried or in a civil partnership.
It is clearly the case that although there is confusion and misunderstanding as to what amounts to a common law marriage, or indeed a union which might confer entitlement and rights, cohabitation is alive and well as a domestic arrangement.
This is why it is our responsibility, as Family Lawyers and Resolution trained practitioners, to educate, inform, and ultimately guide and assist.
The Reality of Common Law Marriage Today: No Legal Recognition or Automatic Rights
The Resolution Cohabitation Committee continues with its progressive work to bring about less of a divide between the rights and entitlements of those who are married and those who are unmarried regarding property and financial security.
Despite all the work undertaken for many years, it remains the case that cohabitation law is about property rights and is not about explicit fairness.
There is a clear divide in the law regarding cohabitation resolution, which falls under the Trusts of Land and Appointment of Trustees Act 1996 (TLATA), and matrimonial claims and protection, which are covered by the Matrimonial Causes Act 1973 predominantly.
Therefore, not only is there misapprehension and a general lack of appreciation within the public realm, fuelled by the media, as to what cohabitation amounts to in terms of financial security, but also, there is an awkward conflict and interplay between the Civil Procedure Rules (CPR), as to property rights, and Family Law under the Family Procedure Rules (FPR).
Added into the mix are claims under Schedule 1 of the Children Act 1989 regarding financial provisions for children born to unmarried parents.
The Family team at Bennett Griffin works closely with our expert Civil lawyers, including Mike Cullen, to ensure that the right advice, at the right time, is given to our clients when looking at these complex areas.
There needs to be a change in terms of the requirement for overall and consistent provision for our clients. Simply based upon the mixture of law which has to be applied in this area, there needs to be change, also.
As such, the Resolution Cohabitation Committee urges reform with regard to enabling all children, regardless of whether their parents are married or not or whether they have entered into a Civil Partnership, to be afforded financial protection and security.
It is felt that the law is not even fit for purpose in this regard.
The Law Commission continues to seek ways to address these gaps.
It is a complex request, as it would mean costly and time-consuming work with regard to reform of the law.
However, this change is essential, as when we are looking at the conflict between the CPR rules and the FPR rules, we have, as a clear example, the issue of jurisdiction and endeavouring to ensure that one Court deals with all points when faced with concurrent applications for TLATA Orders and Schedule 1 Orders.
It is, of course, the case that those two applications should go hand in hand for the benefit of the family as a whole. Still, the law does not naturally and easily facilitate and accommodate this.
Proposed Reforms and Solutions: Assessing “Qualifying Contributions” and Rethinking Definitions
The suggested reforms could include unmarried couples being assessed as to “qualifying contributions”, which, if eligible, could mean that their claims for financial security are treated as if they were married, perhaps with some exceptions and conditions.
It is apparent that some families are being significantly disadvantaged as a result of them having not married.
Living together as if one is husband and wife, by habit and repute, on a non-ceremonial basis, does not amount to the Court approaching one’s financial settlement fairly and holistically. Would an evolution of the law challenge or undermine the concept of the sanctity of marriage? Possibly, but probably not.
Furthermore, this debate throws various issues into the ring, including how Islamic marriage is treated.
It often is the case that it is not, in the first instance, deemed to be a valid marriage in the UK.
The concept of a “committed relationship” needs to be redefined.
There is some discussion as to whether rights should be automatically conferred if the basis of that committed relationship is satisfied and that it would be for the parties to “opt-out” of the ability to make claims equivalent to those of spouses if they wish to do so.
The Importance of Expert Advice and Dispute Resolution:
Fundamentally, there is a huge lacuna as to the entitlement of a party who has lost their partner, not just upon the relationship breakdown but in relation to a lack of automatic inheritance claims.
The issue of intestacy is a huge area that all couples living together need to consider fully regarding taking expert Wills and LPA advice from Gema West and Craig Rees in our Private Client team.
As a Collaborative Lawyer, I value bringing about outcomes for clients driven by their wish to have a solution for their family. Cohabitation break-up is often best suited within Dispute Resolution, such as Collaborative, Mediation and Arbitration, not least as the Court is a harsh and unpredictable arena. These (alternative) forums are for private and creative ways of bringing about the right outcome for those involved.
Summary
To conclude, those music buffs amongst you would have spotted that the title of this blog is taken from the Burt Bacharach classic “On my own”, made more popular by Patti La Belle and Michael McDonald in the 80s.
These lyrics sum up how many separating cohabiting couples will feel, that is, the same as many separating couples who are married feel.
The devastation of the break-up and the need to bring about a fair, calm and supportive outcome for them and their family remains the same (perhaps I am reading too much into the lyrics, but play along with me!) and should be treated as such.
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