Cohabitation and the myth of “common law marriage”

As a (very extended) footnote to Daniel Hill’s two recent posts proposing the abolition of marriage, here and here, readers may be interested in the House of Commons Library’s helpful briefing paper published in June, “Common law marriage” and cohabitation, on how the law of England and Wales applies to cohabitants. It discusses how the current law affects cohabiting couples in the areas of property rights, housing, domestic violence, inheritance, social security, pensions, taxation, immigration, birth registration and parental responsibility. It also includes information about the number of cohabiting couples, the Law Commission’s – and others’ – proposals for reform and a short summary of the position in Scotland and Northern Ireland.

Primarily, the briefing paper points out that “common law marriage” is not a status in English law – which will not be news to regular readers but which, nevertheless, is a folk-myth that refuses to die. Though cohabitants have a degree of legal protection in several areas, cohabitation gives them no general legal status, unlike marriage and civil partnership – and that is the case no matter how long the couple have lived together and regardless of whether or not they have children together.

Number of cohabiting couples

The Office for National Statistics has published annual data on the composition of families and households living in the UK since 1996. During this period, the number of opposite sex and same sex cohabiting couple families has increased, but trends differ between opposite sex and same sex couple families. The ONS reckons that between 1996 and 2017 the number of opposite sex cohabiting couples more than doubled, from around 1.5 million in 1996 to around 3.2 million in 2017. In 1996, around 10 per cent of all opposite sex couples were cohabiting rather than married; by 2017 it was 20 per cent. Over the same period, the number of same sex families increased from around 16,000 to 101,000 – about half of whom are couples who are neither married nor in a civil partnership. 

How does the law treat cohabiting couples?

Crucially, the paper points out that unmarried couples have no guaranteed rights to ownership of each other’s property on relationship breakdown. If a cohabiting couple separate, the courts have no power to override the strict legal ownership of property and divide it as they may do on divorce or dissolution of a civil partnership. In the event of a dispute, the apparent intentions of the parties may be relevant in deciding the proportion of the property owned by each party – but each case is decided on its own facts. Similarly, in the event of intestacy, the surviving partner has no automatic right to inherit any part of the deceased partner’s estate, no matter how long they lived together and even if they had children together. A surviving cohabitant may sometimes make a claim at court under the family provision legislation against his or her partner’s estate if no provision (or inadequate provision) has been made for the survivor either by will or by operation of the intestacy rules – but even in that case, a surviving cohabitant is not treated in exactly the same way as a surviving spouse.

Law Commission proposals for reform

In July 2007, following consultation, the Law Commission published Cohabitation: The Financial Consequences of Relationship Breakdown, in which it recommended the introduction of a new statutory scheme of financial relief on separation based on the contributions made to the relationship by the parties – and available to cohabiting couples who had had a child together or who had lived together for a minimum qualifying period. But nothing happened; and eleven years later, in April 2018, the Government said that it would consider how to proceed in relation to the proposals in the context of any further reforms to the family justice system.

In Intestacy and Family Provision Claims on Death, published in 2011, the Law Commission further recommended that some unmarried partners should have the right to inherit on each other’s death under the intestacy rules without having to go to court: that recommendation has not been implemented.

Scotland and Northern Ireland

The paper notes that, in Scotland, cohabitants may make limited claims against each other either when their relationship breaks down or when a partner dies. In Northern Ireland, cohabitants have legal protection in some areas but, overall, have significantly fewer rights and responsibilities than do married couples and civil partners.

The myth of “common law marriage”

“Irregular” marriage as a recognised legal form persisted in Scotland until marriage “by cohabitation with habit and repute” was finally abolished by the Family Law (Scotland) Act 2006; and its abolition did not, in any case, affect the validity of any such subsisting marriages. Rebecca Probert has suggested that the “common law marriage” myth in English law can be traced back to the consistory court judgment of Sir William Scott in Dalrymple v Dalrymple (1811) 2 Hag Con 54; 161 ER 665 and argues that his judgment must be treated with caution. The issue before him had been whether or not the declarations per verba de praesenti made by John Dalrymple and Johanna Gordon had constituted a valid marriage under the law of Scotland – where the relevant events had taken place – and therefore constituted a valid marriage in England. Unfortunately, in his exposition Sir William admitted [161 ER 667] his “inferior qualifications” to decide the matter – so it seems a rather shaky foundation upon which to build an elaborate edifice of informal marriage  as  a common form that had been brought to an end by the Marriage Act 1753, aka Lord Hardwicke’s Act.

But whatever its origin, “common law marriage” remains an idée fixe that continues to bedevil popular (mis)conceptions in areas such as family law and succession. And the sooner people get it out of their heads, the better.

Cite this article as: Frank Cranmer, "Cohabitation and the myth of “common law marriage”" in Law & Religion UK, 6 July 2018, https://lawandreligionuk.com/2018/07/06/cohabitation-and-the-myth-of-common-law-marriage/

7 thoughts on “Cohabitation and the myth of “common law marriage”

  1. Thanks for this, Frank. While I agree with everything you say, it is still technically possible to contract a common-law marriage under English law if an English citizen abroad is unable, for logistical reasons, to contract a marriage under the law of his or her host jurisdiction. In this case, the English person ‘takes the common law with’ him or her, and may contract a marriage valid at law under it, under the conditions laid down in the decision of the House of Lords in R v Millis (1844). The classic example is marriage by ex-pats in a prisoner-of-war camp; cf the case of Preston v Preston (1963) and Kochanski v Kochanski (1957) here.

    • Absolutely fascinating and I didn’t know that. But in those circumstances, surely the result is a valid subsisting marriage in English law, albeit arrived at by a rather unusual mechanism.

      When people talk about “common law marriage”, what they are referring to is cohabitation – with very few of the rights conferred by marriage or civil partnership.

      • Yes, that’s right, Frank. The strict legal use of the phrase ‘common-law marriage’ refers to a valid subsisting marriage in English law contracted under the common law, rather than under statute. All the marriages contracted in England before 1753 (Lord Hardwicke’s Act) were of this sort. After then the phrase referred only to cases where banns etc. could not be read, so but R v Millis (1844), a case concerning Ireland, ruled that the presence of an episcopally ordained clergyman was necessary for the validity of a common-law marriage, so it is not quite the same as a Scots marriage per verba de praesenti.

  2. Common Law Marriage was declared not to be legal marriage in the Marriage Act 1753, in England. This was Lord Hardwicke’s Act, said to be “a most cruel law for the fair sex”.

    But Common Law Marriage remains legal marriage in certain other Common Law jurisdictions to this day. It remains a phrase of the English language, in everyday usage, and it would probably breach free speech to try to ban the phrase.

    Another example of a law that is dead, but won’t lie down, so-to-speak, is found in the 1888 Act that referred to “the spirit and intendment of the preamble to the Charitable Uses act 1601”, whilst repealing the said 1601 Act. What the public does, is no worse than that piece of draftmanship.

    There’s no such thing as Common Law Marriage? Not true. It’s not legal marriage in the UK in modern times, but it isn’t something non-existent either. Everybody knows what the phrase means. There are simply millions of Common Law Marriages in the UK.

  3. I’m not suggesting anything as daft as a legal ban – how could one do that? I am, however, suggesting that it’s time people stopped using the expression, because, unfortunately, not everyone does seem to know what it means. There’s quite a lot of anecdotal evidence that some people still believe that cohabitation confers the same or similar rights on the parties as marriage or civil partnership. It doesn’t.

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