Common law marriage doesn’t exist . . . and never has

Common law marriage is a subject dear to my heart. I have a family friend who has been royally stuffed because of it. Let’s call her Jane and her partner John.

Both Jane and John had been previously married before they met in the 1980s. They were both in their forties. Jane didn’t have children but John did. Neither marriage had ended well.

They bought a house together. John paid the lion’s share. It was their home for twenty five happy years.

John died a few years ago. His children from the previous marriage were quick to pounce, claiming the house for themselves as their inheritance. Jane was astonished at their lack of compassion but presumed that, even though they had never married, some form of common law marriage would at least ensure she wasn’t left destitute.

But common law marriage didn’t protect her because it doesn’t exist. It never has.

Jane was forced to leave with a fraction of the value of the house. After twenty five years of happy life with John, she now found herself homeless, with nowhere near enough cash to buy a new home, and too old to rebuild any kind of career.

Although this situation is awful, I don’t think the law is the problem. Had John and Jane married, or had John stipulated in his will, she would have been protected. Two sensible legal processes are there to sort out this kind of problem.

Yet for whatever reason, inertia won the day.

‘We just didn’t think’, Jane told me recently.

But what if John secretly hadn’t wanted to disenfranchise his own children? What if Jane had been too nervous to broach the subject of marriage or a will? The result still seems wrong.

Most injustices of this kind happen when unmarried couples split up and there is only one earner. Usually it’s the unmarried father who leaves home and takes all the cash with him. The 1989 Children’s Act states that “the child’s welfare shall be the court’s paramount consideration”. So long as the child is under sixteen, the father has to contribute. But once the child is no longer a child, the mother is left in the lurch. Her contribution as a mother is unrecognised.

Most cohabitants, and the majority of the population, think that common law marriage gives unmarried couples similar rights and protections as if they are married. And yet, according to Professor Rebecca Probert of Warwick University, common law marriage has never existed. It emerged during the 1960s and 1970s as a response to the emergence of cohabitation.

The Law Commission has proposed protections for cohabiting couples. The obvious injustices, like Jane, seem fairly straightforward. But as ever the problem is in defining the less straightforward cases where it is uncertain when cohabitation begins. There is also a concern that the introduction of automatic marriage-like protections could increase lone parenthood as more men are dissuaded from committing at all.

If we don’t want more women – and it is mostly women – left in the lurch, then we need to make sure all women know that common law marriage won’t protect them.

Tell your friends. Common law marriage doesn’t exist.

(This article appeared on conservativewoman.co.uk on 24 March 2014)

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