Marriage: Not just a piece of paper

3 years ago

Common law marriage and partners in the UK.“We were together 30 years and he’s just left me! Oh no… we were never married!”

This was the start of a conversation I’ve had with many people over many years. Turns out that John (not his real name) had left Debra (not her real name) for the company secretary. It transpired that he had been banging her for the last 6 months without Debra knowing. John had proverbially sailed off into the sunset (well – her house. I mean who is going anywhere in 2021, right?).

Poor Debra was left to pay the bills on the house that he owned and raise their 14 year old daughter.

Y’see both Debra and John had LIVED as man and wife but decided to never marry.  Any by “lived” I mean they bought a house, they shared utility bills, went on holidays and had a 14 year old daughter. Debra, like many, became a stay at home mother while John focused on his career. He owned a very successful company which meant that Debra didn’t have to work.  They had a good life. They holidayed twice a year, had the latest IPhones and their daughter took horse riding lessons. Why didn’t they marry I hear you ask? They decided to not get married because they “didn’t believe it in it” and “it was just a piece of paper”.

It was all good….until it wasn’t.

Beliefs versus reality

But now Debra was worried about paying for the (expensive) roof over their heads. She hadn’t worked in years. She was 42 years old with very little employment experience and only a few O-levels to her name. Oh sure they had savings and that was in the joint savings account. Imagine my surprise when Debra told me that John had cleared the joint bank account!

Here’s the tea! If John and Debra HAD married Debra’s future wouldn’t have looked so bleak.

Because when a couple marry they automatically sign up to the Matrimonial Causes Act 1973. I admit that this is usually a dry and dull piece of statute BUT lemme tell you that it comes in very handy for anyone who is thinking of spending the rest of their natural with their beloved.

Now I know for the more legally minded reading this (or those of you who have just done some extra Googling) you will know that Debra and her daughter could have recompense through an application  Schedule 1 of the Children Act 1989 and/or ToLATA 1996 (an extra blog about these will be coming later) but it makes life so much harder. The biggest help that the MCA 1973 would have had on Debra would have been financial.

Here’s why!

1. Recent case law, such as the House of Lords ruling in the landmark case of White v White 2000 made significant changes to the approach of the court when ruling on the division of assets on divorce in these circumstances. This case determined that the wife’s contribution as the home maker was equally as important as the husband’s as the breadwinner.
2. As John was in a relationship and now living with someone else Debra could have divorced him on grounds of adultery (the person who starts proceedings must prove that the marriage has irretrievably broken down by establishing one of five facts). In fact, in any financial proceedings John would be needed to declare what income his partner brought into the house. Common sense really – whatever his new partner was bringing in would affect John’s expenditure.This would have probably been to Debra’s advantage.
3. Rule of thumb in any financial proceedings is money follows the children. Now this is applicable in all financial applications to be fair but especially important in marital financial proceedings. As Debra was the primary carer of their daughter it would have been financially advantageous.
4. The court would have looked at all aspects of both parties. For a lil night time reading I suggest taking a look at Section 25 Matrimonial Causes Act 1973. The court will look at the age of parties; how long they were together; occupation of both parties; all assets and liabilities to name but a few factors.

Right now though? The fact Debra and John decided not to marry means they don’t have this protection.

Myth Buster

There is no such thing (legally) as a “common law spouse`”. Your legal rights as a partner may depend on whether you are married or living together. Those choosing to live together could draw up a Cohabitation Agreement but many choose to not do this.

Now, don’t get me wrong, there are campaigns to change this.

There are many out there who say that cohabitants should have just as many rights as those that choose to marry. We aren’t there yet though. The courts still protect the institute of marriage.Generally speaking, you will have fewer rights if you’re living together than if you’re married.

Food for thought eh?