There are many things in life that we like to believe are The Law, but aren’t. Most are based on little more than spurious folklore and probably an old episode of Ally McBeal, yet we cling to them like litigious limpets. We believe that if something is labelled up wrongly in a shop, they are LEGALLY OBLIGED to sell it to you at the cheaper price. We like to believe that any business serving food must BY LAW have a customer toilet – despite every central London Pret proving otherwise. We love to believe that one about pregnant women being allowed to pee in a police officer’s helmet, if only to know that in a really desperate moment we could shove our handbag up our jumper and fake it.
And it turns out loads of us believe that if you cohabit with a partner, it gives you legal rights. Surprise! It doesn’t.
The new British Social Attitudes Survey has found that almost half of people in England and Wales believe in ‘common law marriage’; ie. the idea that unmarried couples who live together have the same or similar rights to property and financial support as couples that are legally married. But just like the citizen’s arrest or the policeman’s piss helmet, common law marriage is no more than a modern day fable.
“In reality, cohabitation grants no general legal status to a couple,” explains Anne Barlow, Professor of Family Law and Policy at the University of Exeter, who commissioned the question as part of the study by the The National Centre for Social Research.
In other words, you can spend years building a life with somebody – you can share a roof, a mortgage, a whole menagerie of houseplants or even a child with another person – and still be left entirely unsupported by the law should the relationship end, or one of you die. All the times you’ve done that speech, about how to all intents and purposes you’re practically married anyway, and who actually cares if you never get the patriarchal paperwork to prove it? It turns out there’s someone who does care, more than your mother. It’s the state.
The survey discovered that people are more likely to believe in common law marriage if they themselves are married (49%) or cohabiting (48%) compared to a still not-small 39% of single people. Households with children are even more likely to buy the myth (55%). And in an entirely predictable twist, it’s women in male/female relationships who are most likely to be stung by the truth.
“Caring work within families – so raising children or taking on eldercare – is disproportionately taken on by women, whether a family is married or cohabiting,” says Professor Barlow. We know this. But what we might not realise is that outside of a marriage, we’re only as good as our bankable contributions. “If you are married, both financial and non-financial contributions (like caring for family members) are considered equally valuable when deciding how to divide up the assets on divorce. For couples who are cohabiting, it is only the financial contributions to property which are taken into account,” she says.
“I used to think common law marriage was a thing – but then my nan's partner of 30 years died," says Alicia, 33. "There were loads of repercussions, especially as there was no will. The legal red tape was insane, and it costs thousands to tear through. She had to prove everything back to 1980. I wish they’d had a legal document of some sort."
A quick straw poll among my peers suggests that our generation are scarcely more clued-up on the cohabitation situation than our grandparents were. “I guess I thought it was somewhere between a legal loophole that would take lots of effort to enforce, and urban myth,” says Carrie, who has been living with her boyfriend for a couple of years. “But honestly? I don’t know for certain.”
“I heard it in Legally Blonde,” confesses Gabriella. NB: Elle Woods had great hustle, but common law marriage is not recognised in Massachusetts either.
While it’s definitely worrying that so many of us believe in imaginary rights we don’t have, isn’t it more alarming that the law fails to reflect a realistic picture of people’s life choices in 2019? After all, cohabiting couples now account for the fastest-growing type of household, while the number of opposite-sex cohabiting couples with dependent children has more than doubled in the last decade. Where once upon a time moving in together was viewed as little more than a layby on the highway to marriage, now more and more of us are choosing to settle there.
I’m one of them – my boyfriend and I have been together more than eight years, nearly six of them under the same roof. And if I didn’t believe in common law marriage before this news story, it certainly wasn’t through legal smarts. It was from burying my head in the sand, preferring to live in ignorance as well as sin. Nobody likes to think about death or break-ups, do they? Or money, let’s be honest.
Truth is, the reasons couples choose not to get married are as varied and nuanced as the reasons they do; whether it’s circumstantial, financial, political, ideological, or just never quite getting around to setting a date. And drawing a legal line between ‘casual’ and ‘committed’ is only going to get more difficult as our modern definitions of relationships expand and evolve.
But just as a marriage is about so much more than rings and gift registers, so a life of cohabitation can be about so much more than their absence. Rather than being defined by our lack of legal status, it would be nice to feel validated for all that we have and hold together. Even if that did, one day (like many marriages) end.
I’m not saying three trips to Ikea should be tantamount to a wedding, although clearly there’s no relationship test more rigorous than a tantrum in the Poäng section, but there has to be a way of formally recognising that cohabitation does not just mean ‘waiting around for a proposal’. We need a little more respect and fewer impertinent questions. Maybe we need a pithy name (the long-term unmarrieds? The LTUs?). But most importantly, we need to protect ourselves.
“We put in place legal stuff – wills, pensions, both names on our house and kids’ birth certificates – to offer some protection,” says Becky, 38, who has been with her partner for 20 years. “I think we’d still miss out on government widow/er's benefits, but that’s not enough to make us want to get married.”
“However,” she adds, “we both earn. If I had given up my career to raise our family, I might feel more vulnerable.”
The good news is that Scotland and the Republic of Ireland have already introduced legislation to give cohabitants rights to financial provision if a relationship breaks down – although England and Wales lag behind. Then there’s the parliamentary Bill to extend civil partnerships to all couples, regardless of gender, which is on track to be law by the end of this year. So if it’s the tradition and history of marriage that puts you off, not the admin, then a civil partnership could be the answer.
But what can we do in the meantime, us LTUs? Is our only choice to swallow our pride and peg it to the nearest registry office?
“Marriage is certainly an option if both partners want financial protection,” says Professor Barlow. “This gives you automatic rights to claim for financial provision for yourself and any children to meet your needs or to share out assets on divorce or death of your partner.”
“We're probably going to do a courthouse 'wedding' in the next couple of years,” says Sarah, 28, who has been with her partner Charlie for 11 years, and recently granted him power of attorney for medical reasons. “Neither of us are too arsed about a wedding in the traditional sense, but would quite like to be legally joined or protected before we buy a house or have kids together.”
However, a low-key wedding isn’t the only way to gain a little security. “Making wills or a ‘living together agreement’, to set out what you want to happen if you split up or one of you dies, are quite easy to organise,” says Professor Barlow, and suggests seeking advice from a family law solicitor (Law Society and Resolution can help you find one) or the government-backed website AdviceNow.
But she advises doing it sooner, rather than later. “It is important to think about this while you are happy and living together in a pragmatic way, even if you think nothing like this will happen to you.”
So while cohabiting couples shouldn’t have to fight for our rights to recognition, it’s only sensible to know where we stand. For better, for poorer, in sickness and in health.