Common-law marriage myth highlights desperate need for reform

Couple risk getting caught by the tide. Vicki & Chuck Rogers, CC BY

Common-law marriage myth highlights desperate need for reform

Your common-law wife and husband do not exist.

Next month will see the latest stage in the latest attempt to improve the legal standing for people that live together but choose not to marry. With nearly six million unmarried couples living outside marriage or a civil partnership in the UK, there is a real urgency for legal clarity for cohabitants who find themselves separating.

Not least, because of the persistence of the so called “common-law marriage myth” where assumptions still remain that if you live with a partner for a set amount of time you automatically gain a right to certain financial remedies in the event of separation. This is simply not the case.

In February 2013, the charity OnePlusOne found that 47% of UK citizens aged between 18 and 34 mistakenly assumed that cohabiting couples have the same legal rights as their married counterparts. This was a dismal improvement from the British Social Attitudes survey in 2008 which found that 51% of respondents believed that the common-law marriage myth was real, despite campaigns to dispel the misunderstanding.

It’s no surprise then, that lawyers are painfully familiar with people referring to their common-law wife or husband when in fact this doesn’t exist in any legal sense.

Although couples can use cohabitation contracts to set out their legal position, few couples actually take advantage of them due to the lack of knowledge about their rights. And if they do have to rely on a contract in the event of the relationship breaking down, then the court can only deal with it the way it would any other contract – which does not lend itself to resolving such family disputes. If cohabiting couples are to be treated fairly, then reform is needed to properly clarify their legal position.

A long, long road

Previous attempts at a fix have failed. In 2007 the Law Commission published a report calling for reform and in December 2008 Lord Lester introduced a Private Members’ Bill to address the issue. It failed to even pass the committee stage. In 2011 The Law Commission reiterated its call for reform after the government published a statement announcing their intention not to take the matter further.

Practising barrister and peer, Jonathan Marks QC, is the latest contender seeking to bring about change in the rights of cohabitants, by introducing another Private Members’ Bill to settle the issue. The Bill was read last October and is set to be reintroduced in June this year.

The Bill seeks to allow couples who live together (including those with children) and those who have lived together for a continuous period of two years or more to be able to seek similar rights to those that married couples are already awarded in the divorce courts. The Bill has the caveat that either individual applying must have suffered either an economic disadvantage, or their ex-partner has retained a benefit.

Cause for hope

So why should Lord Marks’ Bill succeed where others have failed? Part of the problem has been the perception by many that strengthening cohabitant’s rights is often perceived as undermining the traditional institution of marriage – an issue which reached a crescendo with the introduction of marriage for same-sex couples. Now that same-sex couples can marry, it appears there is a real scope for change.

The pace of reform has also been hampered from opposition from a proportion of cohabitants who prefer the situation where no legal rights accrue as a result of their relationship. Significantly, Lord Marks’ Bill allows cohabitants to opt out of the legal protection being offered.

In 2013, the family lawyer’s organisation, Resolution, found that 69% of MPs agree that a mistaken belief exists around common-law marriage among their constituents, while 57% also believed that the law needed to change to provide greater protection for unmarried couples on separation.

It seems like a happy confluence of events. Opinion in Westminster and the success of the Same-Sex Marriage Act could well translate into legal certainty for cohabitants, who at the moment remain in legal limbo in the event of separation.

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