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Law and Marriage

According to a recent survey some 42% of the population believe that there is such a thing as a common law marriage. Just on the off chance that that 42% coincides exactly with the readership of this article, let me make this as clear as is possible. There is no such thing as a common law marriage.

A couple may have been living together as husband and wife for many years and have an entirely stable relationship, however the law views such couples as dictinctly unmarried. The distinction may have no effect while both partners are still “an item” and alive, but becomes significant should one half of the couple die or if the parties separate.

Marriage therefore has all kinds of legal ramifications, some of which may not be entirely expected.

Marriage, for example, nullifies any previous will. The effect of marriage is that the spouse becomes the automatic next-of-kin and generally the sole beneficiary in the deceased's estate therefore any previous will is treated as if it had never been made. A minor exception to this rule is when a will is made in contemplation of marriage. A will made in contemplation of marriage is a fairly rare occurrence and unless your intended happens to be Rosemary West it is probably safe enough to make a fresh will after the honeymoon.

The marital status of a couple is of particular relevance in terms of property. The recent case of Heather Mills and Paul McCartney highlighted the interest that a wife can establish after a short marriage to a man who had accumulated most of his wealth before the marriage. A woman living unmarried in a house however, which is in her partner’s sole name, may be surprised to find that she has little protection under the law when it comes to a separation and any attempt to claim a portion of the matrimonial home.

Similarly upon the death of the partner, the surviving partner may find that he or she is not the automatic next-of-kin and may find themselves in a dispute with other family members over the distribution of the estate. The next-of-kin of an unmarried man who dies without children would be his surviving parents or siblings. The grieving long-term partner, in the absence of a will, has no real claim to such status.

All of the above stresses the need for unmarried couples to prepare for events such as death and to take such legal steps as are necessary to provide for each other.

Again, if someone is separated but not divorced, even if separated for many years and in another relationship, they may be surprised to find that the former spouse is still treated in law as their current spouse. All of which might form the basis for a Brian Rix farce but can come as a nasty surprise to some.

Why the law is so wedded to the institution of marriage is a little unclear. It may be that our judges are just sentimental old fools but I doubt that. It is more likely that thousands of years of marriages have brought a degree of certainty to the intention of the parties entering into the marriage contract and the law reflects that.

However the marriage may end up, the intention of the parties, at least when they set out, is clear.

There are no doubt lots of arguments as to why couples living together as husband and wife should have the same legal rights as married couples - but that is not the way the law currently stands and we all now know there is no such thing as a common law marriage.