Breaking Boundaries: Reopening debates about the ‘common law marriage myth’

Research at the University of Exeter has influenced and accelerated the introduction of opposite-sex civil partnerships and reopened debates about the ‘common law marriage myth’ and a related need for wider cohabitation law reform.

Any legal concept of ‘common law marriage’ was abolished in England and Wales in 1753 by the Clandestine Marriages Act. Yet, in the 21^st century this is a term used in common parlance to describe couples who live together without having formally married.

In 2019, the National Centre for Social Research, working with Professor Anne Barlow revealed that 47 per cent of the general population are under the wrong impression that cohabiting couples have a common law marriage which gives them the same legal rights as if they were married – a figure that remains largely unchanged over the last fourteen years (down only from 51% in 2006). Among those who had children, this belief was held by over half of the population (55%).

Cohabiting couples now account for the fastest growing type of household and the number of opposite-sex cohabiting couple families with dependent children has more than doubled in the last decade. People’s attitudes towards marriage and cohabitation have shifted yet law and policy have not kept up with these changes.

The consequence of such widespread confusion is that financially vulnerable partners often fail to take steps to protect their financial position during the relationship. This can cause injustice and financial difficulty if the relationship breaks down.

Prof Barlow’s research also found that 72 per cent of people in England and Wales agreed that a man and woman should be able to form a civil partnership. This showed that there was major public support for extending civil partnerships, originally restricted to just same-sex couples, to heterosexual couples. It was cited in the House of Commons debates and led to the accelerated introduction of legislation enabling the first civil partnership ceremonies for opposite-sex couples to take place at the end of 2019.

However, Professor Barlow has highlighted that limiting reform just to the extension of civil partnerships, rather than also addressing wider issues relating to cohabitation, would not improve legal security for the majority of opposite-sex cohabiting couples. This was due in large part to the continuing belief in the common law marriage myth, despite information campaigns and media publicity which aimed to help shed light onto cohabitation law and the limited rights of cohabiting couples.  Her research on this issue was used in debates in the House of Lords supporting further reform during the passage of the Cohabitation Rights Bill, which is currently still before Parliament. It has also been used to inform Scotland’s reform of Cohabitation Law.

If adopted, wider cohabitation law reform would help realign this area of family law with modern family structures and the understanding and expectations in wider society.

A call for evidence about the equality issues around cohabitation is currently live here.

 

Breaking boundaries provides a bitesize look into the variety of leading research that has, and still is changing the world from the University of Exeter.

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