The 'Common Law Marriage' Myth

• Published date: 13 June 2023
• Subject Matter: Family and Matrimonial, Family Law, Divorce
• Law Firm: Collas Crill
• Author: Elizabeth Couch

This article first appeared in issue 29 of En Voyage magazine

Cohabiting couples are the fastest growing family model in the UK. According to the Census 2021, the proportion of people in a co-habiting relationship (not a marriage or civil partnership) has increased from a fifth in 2011 to nearly a quarter in 2021, an increase across all age groups aged under 85 years.

Whereas historically cohabitation was seen as a 'trial run' before marriage and children, the statistics support the reality that cohabitation is now an active choice by couples, many of whom go on to raise children together.

Changes in social attitude towards legitimacy may well account for this increase. Many couples actively shun marriage, but while cohabitation is now increasingly seen as a socially accepted trend, the law has not kept up. The lack of legal rights for long-term unmarried couples is a significant and long-standing issue, and reform is long overdue.

Many people still erroneously believe they have rights as 'common law spouses', but in fact there is no such status or concept in law. As a result, some cohabiting families find themselves in real financial difficulties should they separate, particularly where children are involved.

Whereas married couples can resort to the Court to impose a fair settlement on divorce, there is no such provision for cohabiting couples. The net result can be catastrophically unfair. The fact of marriage can leave two families in starkly different positions on the breakdown of the relationship.

Take a couple who have been in a relationship for 20 years, have three children, live in a property held in the sole name of the father (who works) and where it was agreed that the mother would give up work to care for the children. On separation, it is agreed that the children should reside with the mother. If they were married, the

Court retains a wide discretion upon an application made by either or both parents for an order for a...