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Family Law Blog

Comment on divorce & family law

There is no such thing as common law marriage

I spend a lot of time talking with couples who have chosen not to marry. This can be through preparing documents to regulate their ownership of a property when they have made unequal investments, or when they want to protect their respective interests. It can also be when they are separating, working to reach an amicable agreement over any joint property and settling arrangements for their children. 

I make no judgment on why they chose not to marry: it is absolutely their choice after all. I cannot help but spare a thought for another relationship which has run its course in the same way I do married couples who feel they need to divorce. It just makes me feel sad and annoyed for them that many people in their position don’t know the impact of being an ‘unmarried couple’ and the consequences of choosing to cohabit rather than formally tying the knot.

Most of the time, people do know they don’t have the same rights as married couples but every now and again someone is genuinely shocked when I point this out to them. This means they cannot claim a share of their partner’s pension, even if they have ‘lived as husband and wife’ and raised their children together for 10, 15, or even 20-plus years. This is because they are not the spouse and this is important in the eyes of the law. They may not have an automatic right to the home if it is owned by their partner and they have not made contributions to it in some way. Neither can they claim maintenance support from their partner’s income, except to support any children.

I appreciate I’ve been doing this job for longer than I sometimes care to admit, but it still surprises me when people don’t know the protection that they are not afforded if they choose not to marry. It is not helped by the media when they sensationalise celebrity split stories or highlight one-off cases about unmarried couples who have large capital disputes and can afford to continue with litigation to get a “slice of the pie”. This is not the norm and it distorts people’s understanding.

When a friend, whom I have known for some 20 years, recently commented ‘yes, but they’d be common-law husband and wife because they’ve been together for more than five years’, I couldn’t help but ask why he thought that was the case. Where does the myth start? How does it continue? And when was the five years added as the qualifying time?

I’m happy to explain, to my friend, to my clients and those who seek advice under our free half-hour consultation scheme what the reality is, how I may be able to best protect their position and how we can settle matters. However, I do think that there must be more publicity to make people aware. Just as I have welcomed that finally that there is now gay marriage, as well as civil partnership, I wonder whether there can be civil partnerships for heterosexual couples who don’t wish to marry but wish to regulate their finances. This can help formalise what they intend when they enter the relationship, cohabit and share their lives, so they are not left unprotected if things go wrong because they relied upon a myth that won’t die.

Kimberley Bailey
Family solicitor, Bristol

Blog Author - Kimberley Bailey

Kimberley BaileyKimberley Bailey

Kimberley is a divorce and family law solicitor with Woolley & Co, based in Bristol.

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