Ending the Myth of Common-Law Unions – Family Law

The myth of de facto marriage

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

A British survey of social attitudes conducted in 2019 demonstrated the prevalence of the myth. It showed that 46% of the total population of England and Wales incorrectly assumed that cohabitants living together formed a ‘common law marriage’. And in households with children, that figure rose to 55%.

But there is no truth in the myth.

Important consequences

And believing the myth can have far-reaching consequences, with many mistakenly believing they have legal protections, which turn out to be non-existent.

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

In the event of the breakdown of a cohabitation relationship, one party does not, for example, have the automatic right to demand a share of the family home or financial support from the other party, as it would have if it were married or civil partnership.

This can mean that the financially weaker party can end up in dire financial straits when the relationship breaks down and, when living in property owned by the other party, even homeless.

And when a partner dies, the survivor may have great difficulty accessing a survivor’s pension, or even keeping the family home.

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

Call for law reform

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

The latest such call came from the House of Commons Women’s and Equalities Committee, an all-party committee of MPs that holds the government accountable for equality legislation and policy.

The Committee recommends that the Government urgently launch a public information campaign to highlight the legal distinctions between marriage, civil partnership and the choice to cohabit.

But while such a campaign can lessen the damage caused by the myth of common law marriage, ultimately the only real way to deal with the problem is to give cohabiting couples appropriate rights.

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

Recommendations

The issue was considered by the Law Commission in 2007. The Commission recommended that cohabitants who had had a child together or who had lived together for a number of years be granted certain basic rights to share the benefits and disadvantages of the relationship.

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

This would be very different from the situation in a divorce, where the plaintiff is entitled to a share of the marriage assets and can base a claim simply on financial need.

And the Law Commission has also recommended that cohabitants can choose to opt out of the scheme if they wish.

The Committee now recommends that the government implement such a system.

With regard to the problems associated with the death of a cohabitant, the Committee essentially recommends that cohabitants be placed in a similar situation to that of married couples and civil partners so that they have, for example, the right to inherit of the family home after the death of the partner.

As the Chairman of the Committee has stated, it is high time that the government recognizes the evolution of society towards greater cohabitation and implements these reforms, in order to ensure better legal protection for cohabiting families.

Deciding not to marry is a valid choice and not penalized by law.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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