The Myth Of Common Law Marriage

• Published date: 07 December 2022
• Subject Matter: Finance and Banking, Family and Matrimonial, Financial Services, Family Law
• Law Firm: Collas Crill
• Author: Ms Sarah Millar, Elizabeth Couch and Jazzmin Le Prevost

A recent study by the House of Commons Women and Equalities Committee has found that the number of cohabiting couples in England and Wales is rising, with around 3.6 million cohabiting couples in 2021 compared to 1.5 million in 1996.

The study also set out that almost half (46%) of the population of England and Wales wrongly assume that cohabiting with someone forms a 'common law marriage' and grants certain legal rights and protections.

In some situations, particularly in relation to children and domestic abuse, cohabitants have similar (and sometimes identical) protections to those of spouses or civil partners. For example, the Court always has jurisdiction in relation to disputes involving children, such as contact.

However, in other areas - particularly in relation to finances and property - cohabitants have vastly inferior legal rights.

The situation in Guernsey

In Guernsey, divorcing spouses have the ability to make financial claims against one another by virtue of the marriage, for example in relation to selling and dividing the proceeds from the matrimonial home. The Court will look at the entirety of the circumstances to ensure a fair outcome is reached and will always consider the welfare of any minor children of the marriage as its first priority. The Court can make a broad range of orders to distribute the assets, including orders for spousal maintenance.

This is not the case for cohabiting couples. Upon relationship breakdown, if two people are not married then they can only have recourse to the general law of property, contract and trusts to resolve disputes. Unmarried couples have no automatic right to each other's property, regardless of how long the relationship lasted.

In relation to real property, the situation in Guernsey is also very different to that of England and Wales, so it is important people do not assume English property law automatically applies.

Many people wrongly assume that even if their name is not on the deed, they might still be...