Common law marriage and other Family Law Myths

As an area of the law that features heavily in popular culture and the media (think “The Split”, “A Marriage Story”, “The Parent Trap” etc), divorce and family law is complex, dynamic, and often misrepresented and misunderstood. 

As a trainee solicitor in Kingsley Napley's Family and Divorce department, I have spent my time with the team unlearning many of the myths and misconceptions around divorce, arrangements for children, the court process, and family dynamics. This article aims to separate truth from fiction while providing insight into some of the matters our lawyers handle day-to-day.

Myth 1:  Common-law marriage exists.

In short: It doesn’t (in England and Wales).

Contrary to popular belief, there is no such thing as a ‘common law’ marriage in England and Wales. This myth likely endures in part due to misguided Canadian expats like myself, who in Canada, understand common-law partners to mean a couple who has lived together, uninterrupted, for a certain amount of time, who will therefore be entitled some of the same benefits as married or civil partners.

In contrast, couples in England and Wales who live together but are not married or in a civil partnership (also known as cohabiting couples), do not have the same rights or obligations as a spouse or civil partner, regardless of how long they have lived together or whether or not they have children.

Crucially, this means rights to joint property, children, and finances are far more uncertain in the event of a separation than if you were in a marriage or civil partnership. In fact, there are few financial claims you can make should you and your partner separate in the future. This area of law often requires consideration of trusts and property law and can require detailed evidence relating to financing, common intentions, and the relationship history. 

Unfortunately, the government is still reluctant to introduce legal reform that protects the rights of cohabiting couples. Until it does, cohabitation agreements remain a popular and useful option to best protect your interests if you are living with your partner.

We often work collaboratively with our Private Client and Real Estate teams to draft cohabitation agreements and Declaration of Trusts, to help decide the best strategies to pursue should you find yourself in this situation.

 

Myth 2:  Prenuptial agreements are not recognised in England and Wales.

Nuptial agreements (ie. a prenups or postnups) are legal here, however, they are not legally binding in court.

Practically, this means that while they are not automatically enforceable in court, if certain requirements are met, a nuptial agreement (a PNA) may be upheld in court.

Since the 2010 case of Radmacher v Granatino, the court should give effect to a PNA that is freely entered into by each party with a full understanding of its implications, unless it is unfair to hold the parties to the agreement. The specific formalities that a PNA should meet are as follows:

• it must not try to contract out of responsibility for the financial needs of any children;
• each party must disclose to the other sufficient detail of their financial position – to include any pre-existing and/or inherited wealth – and answer any reasonable questions the other may have (in practice, these enquiries are rarely made);
• it should be signed at least 28  days ahead of the wedding;
• there must be no suggestion of duress, fraud, undue influence, misrepresentation or mistake before entering into a PNA; and
• each party should have independent legal advice before signing.

As a result of this case, nuptial agreements have become increasingly popular as they provide a helpful road-map for working out how you want to organise your finances after you marry, and a fail-safe in case things don’t go according to plan. On divorce, there will always be scope for argument about whether the PNA should apply, so it is always important to seek legal advice if you are questioning whether a PNA is right for you and your partner.

 

Myth 3:  You will get a better financial settlement on divorce if your partner cheated.

Unfortunately, this is still a widely held belief that if one partner can be “blamed” for the divorce, that the other is likely to be compensated by being awarded a higher share of the matrimonial assets. This is simply not true.

Divorce, finances, and arrangements for any children are all dealt with separately in family court. The reason for a divorce is not relevant to any financial proceedings. Instead, the court ensures that the family’s assets are shared fairly and each of the parties and any children’s “needs” are met when determining any financial settlement. 

Furthermore, the government recently enacted the Divorce, Dissolution and Separation Act 2020 (the DDSA) replacing the old system which required couples seeking a divorce to convince the court that their marriage had “irretrievably broken down”. To do so, they had to cite one of five reasons: 1) unreasonable behaviour, 2) adultery, 3) desertion, 4) 2 years of separation and consent, (5) 5 years’ separation without consent from the other party. This new “no-fault” divorce system which came into effect on 6 April 2022, removed the element of “blame” altogether from divorce proceedings.

 

Myth 4:  Once the divorce is complete, your partner no longer has any claim to your assets.

As mentioned above, divorce, finances, and arrangements for any children are all dealt with separately in family court. The divorce or separation only refers to the legal status of the marriage or civil partnership, not the financial claims the partners have.

If a financial consent order is not drafted and approved by the court (either through court proceedings, lawyers (private FDR or mediation), or Arbitration (more information here), financial claims can remain open, meaning that your partner could make a financial claim much later after the date the divorce was finalised.  

 

Myth 5:  It’s a custody “battle”.

Love might be a battlefield, but divorce and deciding arrangements for any children you share with your partner, certainly doesn’t have to be.

Another likely symptom of TV, film, and tabloids, parents going through divorce and separation are often pitted against each other using language indicative of a fight instead of how arrangements involving children should be handled, with cooperation and compassion.

The concept of “custody” does not exist legally in England and Wales. The Family Court instead refers to matters involving children of separated parents as “child arrangements”. Family law professionals are shifting away from the use of adversarial language in favour of more inclusive and cooperative language, acknowledging the negative effect that it has on parents going through divorce and separation and so also on their children.

While our current legal system, which is adversarial in nature, does not help matters, increasingly there have been campaigns for reform and client demand for more options outside of the court setting. Parents are now able to access a holistic range of support from therapists and mediators alongside legal services to help them resolve issues together, rather than work against each other.

As an example, mediation is a forum within which parents are encouraged to have the children at the centre of the discussions. Mediators will discuss with parents what they think will be best for their children, what their day to day experiences have been so far and what they think about the suggestions being put forward. It is the duty of mediators to also consider whether child inclusive mediation is appropriate in specific cases.  This involves a specially trained mediator being appointed to meet with the children. Even if the children do not directly participate in the mediation process, it is the mediator’s job to make sure that they have a voice and a presence in the sessions by asking the adults questions about them and how they may be feeling.

 

Myth 6: Surrogacy  is not an option for couples wanting children in the UK.

Furthermore, if you have a child using a surrogate, under English law, you and your partner will not be the child’s legal parents.  The surrogate is the legal mother of the child, even if she has no genetic connection to the child. You therefore need to ask the court to make a parental order which will extinguish the surrogate mother’s (and her husband’s or civil partner’s) parentage and transfer parentage and the associated rights and responsibilities for your child to you.

The situation may be more complicated if your child was born following an international surrogacy arrangement and, no matter what the position is in the country of birth, English law does not recognise it. There are also immigration implications if you have an international surrogacy arrangement and you need to understand what rights your child has to British citizenship and how they will be able to travel home. 

It is best to take advice (more information here) as early as possible so that you know what the legal requirements are and what steps you need to take here and in the country in which your child is born.

 

Family law is an important area of law that safeguards the rights and responsibilities of every member of a family and covers a wide range of issues from separation and divorce to child arrangements and surrogacy. Even in situations that may seem clear-cut, there are often complex legal, financial, and emotional factors to consider.

It is important to seek legal advice when dealing with family law matters as an experienced solicitor can help you navigate the legal system, protect your best interests and guide you through the matters covered in this article with clarity and compassion. With legal guidance, you can make informed decisions, feel more confident in the legal process, and work towards the best possible outcome for you and your family.

FURTHER INFORMATION

If you would like any further information or advice about the topic discussed in this blog, please contact Sameera Abdulrehman or a member of our Family Law Team.

 

ABOUT THE AUTHOR

Sameera Abdulrehman is a trainee solicitor in the family and divorce team. Sameera is currently in her third trainee seat, having completed her second seat with the Criminal litigation team and her first seat in the Immigration team, where she assisted with preparing applications for a wide range of UK immigration matters including corporate and private client immigration applications, and assisted with asylum claims and human rights applications and appeals.