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What we really mean by ‘common law marriage’

Family Law | 20 Nov 2017 1

Most of us have better things to do on a Saturday night than think about law. Go out for a drink, watch a film, or even watch the mind-numbing Strictly Come Dancing, if that is really your thing. Okay, perhaps the last of those is not better than thinking about law.

Whatever, it is a sad truth that some lawyers do spend their Saturday evenings thinking about law. Take last Saturday evening, for example. Some innocent at the Law Society’s Find a Solicitor website was foolish enough to post a tweet saying that there’s no such thing as a common law marriage. Nothing wrong with that, you might think. Wrong. The tweet attracted the savage ire of a certain well known family law Queen’s Counsel.

What could possibly be the problem? All the tweet was trying to do was to get out the important message that, contrary to popular belief, by simply cohabiting for a certain period of time the law does not automatically recognise you as being married, and does not therefore grant you the same rights as married couples. People who are in, or are contemplating entering into, a cohabiting relationship really need to know this, rather than be fooled by the myth of the ‘common law marriage’.

The problem for the Queen’s Counsel was that the tweet was not one hundred percent legally accurate. You see, there are technically things that could be accurately described as common law marriages. A read of the lengthy Twitter thread (yes, I really did have nothing better to do on my Saturday night) gave a couple of examples. One was where the common law can recognise overseas marriages that fail the strict formality requirements of ‘real’ marriages.

Another, even more improbably, was pointed out by a different Queen’s Counsel:

“Members of the Royal Family are excluded from the marriage acts. As Prince Charles could not get married in a registry [sic] office he and Camilla have a common law marriage.”

Okay, so there may be a handful of marriages that can be described as ‘common law’. However, the number is vanishingly small, when compared to the 12.9 million married or civil partner families in this country or, as the Law Society FAS pointed out in their tweet, the 3.3 million cohabiting couple families.

But in the end, all of this is little more than lawyers being pedantic (not for the first time, I hear you say). Yes, it is possible to accurately describe these things as ‘common law marriages’, but it is also possible to accurately describe Winston Churchill as a ‘bricklayer’. But no one would reasonably do so.

And as a legal academic quite rightly pointed out on the thread, what the public and, indeed, most lawyers understand by the term ‘common law marriage’ is what I described above: a marriage somehow recognised by the law simply because two people have lived together for a certain period of time. That is what we really mean when we use the term.

Why is all of this important? It’s Important because we mustn’t do anything to dilute the message that cohabiting couples do not have the same rights as married couples, no matter how long they have lived together. In fact, many have no rights at all and can be left in dire straits at the end of a relationship, as I have explained here just recently. As I said above, and I will unashamedly repeat again: people who are in, or are contemplating entering into, a cohabiting relationship really need to know this, rather than be fooled by the myth of the ‘common law marriage’.

So let’s keep the message clear and simple: there is no such thing as a common law marriage.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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    1. David BURROWS says:

      Or as Lord Denning MR put it, almost exactly 40 yrs ago today in Davis v Johnson in the Ct of Appeal:

      …a “common law wife.” No such woman was known to the common law, but it means a woman who is living with a man in the same household as if she were his wife. She is to be distinguished from a “mistress,” where the relationship may be casual, impermanent, and secret.

      To go back for a few centuries, by the old common law a husband was allowed to beat his wife so long as he did it with a stick no bigger than his thumb. He was able, Blackstone says, to give his wife “moderate 271correction.” But Blackstone goes on to tell us that by his time this power of correction began to be doubted: “Yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege”: see Blackstone’s Commentaries, vol. 1, 8th ed. (1775), p. 445.

      Those days are long past. “Battered wives” are now a matter of public concern. The House of Commons in 1975 set up a Select Committee of its members to report on violence in marriage. This committee heard much evidence on the problem. They presented a report calling for steps to be taken urgently to protect women who were subjected to violence. These steps included legislation. This took place and is now to be found in the Domestic Violence and Matrimonial Proceedings Act 1976. This Act came into force in June of last year 1977. Soon afterwards many a woman sought the aid of the county courts for protection under the Act. At first the judges granted injunctions against the man, ordering him out of the house. They followed the very words of the Act. But in two cases the man appealed to this court.
      … and, as he explained, the CtApp allowed the men’s appeals so Denning’s 5-judge ‘court of all the talents’ put it right; and teh House of Lords agreed.

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