If your studies with The Institute of Legal Secretaries and PAs are taking you in the direction of family law, you will appreciate the types of rights that are available to couples who are divorcing and looking to divide their assets. However, if the title of this article has you scratching your head at this point, due to the fact that you feel there may be more to family law than was originally covered in your course, read on to find out just how redundant the term “common law marriage” really is in England and Wales.
Where does the term “common law marriage” come from?
It would appear that no one is really sure where the term ‘common law marriage’ originally came from. Legal researchers have scanned records and statutes to attempt to qualify this question; however, there is no definitive moment where one can see that this term originated. Even if your research takes you as far back as the Marriage Act 1753 – from which many legal historians believe the term may have derived – it soon becomes clear that this relationship title was never used at this time.
In fact, it is interesting to note that back in the 18th century, cohabiting couples wouldn’t have dared to affix such a term to their relationship for fear of being prosecuted by the church courts for the offence of fornication. So it can be said with real certainty that this term did not originate as far back in time as many people think.
Other suggestions for the term’s origin
You are likely to find the term “common law marriage” used most widely by people who do not have any knowledge of the legal system in England and Wales. Even the most basic courses in family law will soon reveal that there is absolutely no merit in this term in the UK. This does not mean to say that common law marriage remains as redundant in other countries across the globe, especially in legal systems that have adopted the common law system of England and Wales in the past (e.g. the USA, Australia, India, etc.). In fact, research has identified eight states in the USA, plus the District of Columbia, that formally recognise the concept of common law marriage, and this does indeed confer several rights on co-habiting couples.
Given the fact mentioned above, perhaps the term “common law marriage” actually derived from the USA or some other country where the common law system is in operation today. Who says it had to originate in the founding country of this type of legal system?
The doctrine of equitable/beneficial interest
So, whilst we have ascertained that the concept of common law marriage does not confer any rights in law in the UK, is that the end of the matter as far as non-married, co-habiting couples are concerned?
The answer to this question is “no”. If you ever study property law – especially the law of equity – you will soon discover that there are ways in which a co-habitee can acquire rights in property (and not just land) without actually being married. This is through the concept known as beneficial or equitable interest. As there are two types of legal ownership of property in England and Wales – legal and equitable ownership – a person contributing towards a mortgage, rent or a property’s cost, for example, may well be able to claim a beneficial interest in the property in the event of the relationship breaking down.
Therefore, it is not necessarily the case that all will be lost if a non-married couple separates with property involved. Each partner may still be entitled to an equitable interest in the property, even if the individual’s name is not on the original deeds (this is legal ownership).
Alas, there are many myths and downright falsities connected with our legal system, and such points can do great harm. At the end of the day, it is definitely true to say that marriage and civil partnerships will realise the highest levels of rights and protection for each party in a relationship; however, whilst common law marriage fails to confer any rights in itself in England and Wales, the doctrine of equitable interest should always be investigated where any property is involved.