Legal consequences of the common law marriage myth

Bannister, Sam

Abstract

The 'common law marriage myth' is a well-established phenomenon. About half of the British public believe that simply cohabiting together as a couple entitles them to rights equal to spouses. Belief in the myth may lead to significant harm if it means individuals do not take steps to protect themselves or are, due to their erroneous beliefs, more likely to make decisions within the relationship which damage their own economic prospects. Although there has been significant research into the nature of the common law marriage myth, there has been little work done on how the myth could impact litigation, particularly when claiming a remedy at the end of a cohabiting relationship. This article therefore asks whether private law doctrines may consider belief in the myth a relevant part of a claim at the end of a cohabiting relationship, on the basis this erroneous belief has induced the claimant to change their behaviour. This article will focus particularly on three claims: under the common intention constructive trust, proprietary estoppel and unjust enrichment, with the aim of considering how litigation (and negotiations prior to litigation) could utilise the myth rather than treating it as merely part of the background facts.

Citation

Bannister, S. (2023). Legal consequences of the common law marriage myth. Child and Family Law Quarterly, 2023(September 2023),

• Journal Article Type: Article
• Acceptance Date: Sep 4, 2023
• Publication Date: 2023-09
• Deposit Date: Sep 6, 2023
• Publicly Available Date: Oct 1, 2025
• Journal: Child and Family Law Quarterly
• Print ISSN: 1358-8184
• Publisher: Jordan Publishing
• Peer Reviewed: Peer Reviewed
• Volume: 2023
• Issue: September 2023
• Public URL: https://nottingham-repository.worktribe.com/output/25065960
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