The Confusion about Common Law Marriage

In this article, the author – Jonathan James, a family law solicitor with more than 15 years’ experience and a deputy district judge – takes a close look at the term common law marriage and the myths surrounding it.

Back in 2007, a survey showed that 61% of British people thought that “common law marriage” was a legal status, and it seems that a lot of people still think so. About common law marriages, never mind how long you have been together, how long you have been living together or how many children you have together, there is no legal status for couples who have not married! Common law marriages do not exist!

It was in 1753, over 250 years ago, that the first Marriage Act was passed. There had been increasing confusion about people who had gone through no ceremony, gone through an unofficial ceremony or had a church wedding. Parliament decided to sort out the mess – a marriage meant giving advance notice, a ceremony in a church and a register entry. Are you married? Just show me the register entry because it decides the point. Of course the marriage doesn’t have to be in church any more, but the other essentials still apply.

So is this a problem?

If everyone was clear about the misconceptions about marriage, their own legal standing and what it entails, then no. But take this in to consideration:

• Far more women lose out than men.
• More women take career breaks than men do.
• More women receive lower pay as a result and lose out on years of promotions, often to prioritise the family.
• More women can expect to a reduced pension from work for the same reason.

In a divorce, the court can compensate for this by adjusting the ownership of the family assets, sharing the husband’s pension with her, ordering him to pay her a lump sum or maintenance, even ordering him to transfer shares in his business to her. None of this is available to people who are not married. If you’re not married you own what you own and no more. If you own less than you would have if you had stayed single, that’s your problem – the law is helpless.

Can the courts do anything for people who cohabit?

Occasionally, the courts can look to see if property which is in someone’s sole name should be treated as joint. Usually this is the house but it can sometimes be the family business. However, the number of cases in which this happens is very small. The test is not what is fair, but what the parties agreed in the past. Usually you have to show that you put money into the asset, probably by helping to buy it. If there are children, the courts can order financial and property provision (Schedule 1 Children Act 1989). However, almost exclusively these are for parties who are extremely rich – the CSA is the normal recourse for Mr. and Miss. Average.

Is this likely to change?

No time soon is the answer. There was a Law Commission review of the law, published in July 2007. It recommended changes which would have given cohabitants more than they can get at present. The government announced in September 2011, however, that there would be no change during the life of this parliament, i.e. before 2015. Please also note that this material is made available as informative material only and that it does not in any way or form constitute legal advice.