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Common law marriage - a peculiarly persistent myth

Posted on 22 January 2019 by Miranda Phillips, Research Director

There’s no single way of ‘doing’ family in modern Britain: family life and personal relationships have changed considerably over the last few decades - from the introduction of same-sex marriage, to a marked increase in the number of mixed-race couples, or a rising tide of flatsharing and young adults moving back in with their parents. Nowadays, cohabiting couples (both opposite and same-sex couples) are the fastest growing type of family, more than doubling from 1.5 million families in 1996 to 3.3 million families in 2017, with 15% of dependent children living in cohabiting couple families [1].

While British society is evolving, policy is not always keeping pace with these changes; in England and Wales, cohabitants have no legal status and, therefore, no automatic rights in most circumstances – especially if the relationship comes to an end. For example, if one partner dies there’s no right for the other to inherit part of their estate – regardless of how long they have lived together and even if they had children together. Equally, there is no exemption for tax purposes and no legal duty to support the partner financially.

Yet almost half of us (46%) living in England and Wales are unaware that this is the case and think that an unmarried cohabiting couple have a “common law marriage” with the same legal rights as a married couple, according to the latest British Social Attitudes Survey. This figure is largely unchanged since 2005.

The data also show that people living in households with children are significantly more likely to think that common law marriage exists than those in households with no children (55% vs 41%) and singles (39%). Worryingly, cohabitants (48%) are no more clued up than married people (49%).

Misperceptions like this can have very real negative implications for people’s lives and the decisions they take.  Cohabitants may face financial hardship and even losing their home if the relationship breaks down. Additionally, we know that the lack of legal rights for cohabitants affects particular groups disproportionately, particularly women and children, as women remain more likely to put careers on hold while raising children and become financially dependent on their partners.

The recent introduction of civil partnerships for heterosexual couples will offer an alternative to couples who wish to form a legal union without entering a traditional marriage. However, as around half of cohabitants don’t know about their lack of legal status, it will take more than the extension of civil partnerships for real change to take place.

One possibility would be granting cohabitants automatic rights.  In 2006, Scotland introduced a set of limited rights for cohabitants who separate, or in cases where one partner dies [2]. While the Civil Partnerships bill had its second reading in the House of Lords last week, there are currently no plans for the second reading of the cohabitation rights bill, so there’s little sign of progress on that front.

But while legislation may be an important part of addressing this problem, wider societal structures, cultural norms and public attitudes are equally important. The public as a whole need to have a better understanding of their legal status, empowering them to take decisions that suit their family’s circumstances. And for that, a combined effort will be needed: one involving government, lawyers, practitioners, wider society – and, I hope – social researchers.

[2] Under the Family Law (Scotland) Act 2006, which came into force in May 2006, cohabitants (opposite sex and same sex couples) may make limited claims against each other in the event of their relationship terminating or on the death of one cohabitant.

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