Common Law Marriage

The first findings of the British Social Attitudes Survey show that 46% of respondents thought that living together constitutes a common law marriage. This proportion has remained remarkably unchanged over time (47% in 2005) despite a significant increase in the number of cohabiting couples. A smaller proportion (41%) knew that cohabiting couples are not in a common law marriage. Households with children (55%) were more likely to believe in the existence of common law marriage than those without (41%).

The question was commissioned by the University of Exeter and funded by the Economic and Social Research Council.

(Source: National Centre for Social Research, 22nd January 2019)

Myth of Common Law Marriage

The above shows that nearly half the population believes in the myth of the common law marriage.  A common fallacy is that if you live together as a couple for more than two years then you become 2 “common law” man and wife.

The law has not caught up with social trends and that more and more young people are choosing to live together, rather than get married.  When things go wrong it is often difficult to unpick what has happened in the relationship and usually in domestic relationships (contracts) there is a presumption that there is no intention to create legal relations ie be legally bound.    And very often agreements are all be word of mouth – “pillow talk” – and nothing is reduced into writing.

If you are married and your relationship founders then the wide adjustive jurisdiction of the Matrimonial Causes Act can deal with financial issues (and to include the children if by agreement).

If you are not married then the Matrimonial Causes Act does not apply and you have to rely on a number of statutes to deal with disputes – the Trusts of Land and Appointment of Trustees Act 1996; Schedule 1 of the Children Act 1989 being the two most common statutes used when there are disputes over property and finances relating to the children.

Often a couple buy a property together as joints tenants, without realising that by doing this, that the starting point, if there is a dispute is that the legal and beneficial interests in the property are held 50:50.  This can cause a problem where one party has contributed significantly to the acquisition of the  property through say payment of deposit or mortgage payments.     That person then has to enter into expensive litigation to show that the beneficial interests in the property should not be held in the same way as the legal interests.

Case law has stated that when couples are not married then mediation should be attempted as mediation provides a “one stop” forum which the current legislation does not give to couples who are not married.  Harney & Wells Family Mediation Service can help separating couples reach proposals that they can live with in an impartial and managed forum.  The intake session to assess suitability for mediation is free.

To avoid problems in the future couples who intend to live together and/or buy a property together should take each take independent legal advice.  This is to consider whether a cohabitation agreement should be entered into and/or how any property should be held.

Harney and Wells is a specialist family firm offering independent legal advice.   We offer a fixed fee initial appointment for £100 plus VAT at 20% (total £120.00). For further details call us on 01273 684666, email us at enquiries@harneywells.co.uk or use our Contact Form.

Spousal Maintenance