When Law Society president David Greene recently commented on the Law Commission’s review of marriage, he also drew attention to the elephant in the room:
“We would… urge the Commission as part of its review to consider public legal education on the ‘common law’ marriage myth and what constitutes a legally valid union.”
While it is true that marriage laws in England and Wales desperately require updating, the laws that govern cohabiting couples and families have never been properly unified. For decades, it has been a feature of our culture that couples have enjoyed enduring relationships without marrying and children frequently grow up in unmarried families, yet our laws do not reflect this reality. The absence of legislation to protect these families has led to great hardship, and some would say, injustice.
Is common law marriage really a myth?
As a family solicitor, one of the things that worries me most is the widespread acceptance of the myth of common law marriage. According to a British Attitudes Survey 1, some 46% of people believe that common law marriage exists in England and Wales. As a result, many people continue to enter committed, cohabiting relationships (without marrying or registering a civil partnership) believing that they will be protected if something goes wrong. The truth is that cohabiting couples can be left legally and financially vulnerable if the relationship ends or if one partner dies.
Should cohabiting relationships be legally recognised?
If cohabiting couples were legally recognised, each party would have more rights and responsibilities towards the other. But (and this is where things get complicated) would these rights and responsibilities be desirable when individuals have actively chosen not to enter into a legal contract with one another? Should someone in a cohabiting relationship, with little or no financial or legal responsibilities towards their partner, be made to fulfil such responsibilities? A key element of any contract is that it has been entered into knowingly and willingly. This is seemingly at odds with the very nature of cohabiting since many couples prefer to cohabit rather than formalise their relationship via marriage or civil partnership.
What protection does exist for cohabiting couples and their families?
In England and Wales, there are a few mechanisms in place to help unmarried couples choose how they want to deal with issues involving finances, property, and children. At LSL Family Law, we can advise and assist with Cohabitation Agreements, also known as Living Together Agreements. These agreements can be drawn up when a couple first start to cohabit, or at any time during their relationship. We can also advise on the options for property ownership and responsibilities towards, and choices for, children in cohabiting families.
Finding a way forward
It is only when couples know that they do not have substantial legal rights and responsibilities towards one another that can they take steps to rectify the situation. As David Greene mentioned, public legal education is the key to helping people to protect themselves and their families.
Resolution (the Association of Family Lawyers of which Linda and I are both accredited members) has previously campaigned for a change in the current laws to provide greater protection for cohabiting couples and their children when they separate. A video from the 2017 Resolution campaign, entitled Cohabitation Nation, offers an excellent summary of the situation facing cohabiting couples: youtu.be/MdvcxKRIKwY
Campaign groups and legal professionals hope that the government will follow in the footsteps of other countries (including Scotland and Canada) who have already found ways to provide better understanding and clearer protections for unmarried couples. After all, cohabitees and their families in England and Wales also deserve recognition, support, and justice.
Consultant Family Solicitor, LSL Family Law
- 2018 British Attitudes Survey, carried out by the National Centre for Social Research.