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Common Law marriage myths

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Common Law marriage myths

Postby AdrianB38 » Mon Nov 27, 2017 2:35 pm

While we're talking about proposals to change the registration of marriages in England and Wales, I was interested to note that the BBC website has an article today about Common Law marriage myths, specifically that people in England and Wales imagine that unmarried couples have rights because they have a Common Law marriage.

Of course, they don't, because there is no such thing in English law as a Common Law marriage, and never has been. Other jurisdictions do have the concept. Scots Law had the concept of marriage by repute, which was starting to edge towards Common Law marriage.

The problem with Common Law marriage from a genealogist's viewpoint is that some software does allow a relationship to be marked as a Common Law marriage, but it's not remotely clear what the status means, whether it's just a fancy way of saying Unmarried or what.

Anyone had to deal with that confusion?


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Re: Common Law marriage myths

Postby JaneyH » Fri Dec 01, 2017 2:49 pm

I use FTM 2017 as my main software. I link a man and woman as 'spouse' if they have children together, regardless of whether they ever married. Where there are marriage details I obviously add these, and where I know (or have strong evidence to indicate) they were never married I add a note to say 'not married'.

So for example I have a couple of ancestors where the child's baptism is clearly marked as 'illegitimate / base born' but where I have a Bastardy record naming the father. I have linked that person as 'spouse' and said 'not married'. It works for me, but perhaps this is a bit irregular from a professional's perspective.


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Re: Common Law marriage myths

Postby brunes08 » Mon Dec 04, 2017 1:22 pm

I,too, saw the BBC article about Common Law myths. A few months ago, I was helping a friend sorting out family documents. We found some Scottish ones that indicated that in two cases their 'marriages' were 'cohabitation by repute'. Later they formalised the unions. I looked up the legal state for such marriages and found that in Scotland these were finally abolished under the Family Law ( Scotland) Act 2006. So no more nipping over the border to Gretna Green!
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Re: Common Law marriage myths

Postby AdrianB38 » Mon Dec 04, 2017 2:02 pm

It was only quite recently that I saw a "by repute" marriage certificate for the first time. (Might even have been on here).

What happened in such a case, was that a couple who'd been living together without a formal marriage ceremony, could go to the local Sheriff and ask for the formal recognition of their union. He could then, if certain criteria were met, issue a certificate recognising the marriage, which would effectively retrospectively legitimise any children etc. From then on, the marriage was as formal as any other.

I'm not certain that Common Law marriages need that formal recognition.

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Re: Common Law marriage myths

Postby Guy » Mon Dec 04, 2017 6:14 pm

AdrianB38 wrote:While we're talking about proposals to change the registration of marriages in England and Wales, I was interested to note that the BBC website has an article today about Common Law marriage myths, specifically that people in England and Wales imagine that unmarried couples have rights because they have a Common Law marriage.

Of course, they don't, because there is no such thing in English law as a Common Law marriage, and never has been. Other jurisdictions do have the concept. Scots Law had the concept of marriage by repute, which was starting to edge towards Common Law marriage.

The problem with Common Law marriage from a genealogist's viewpoint is that some software does allow a relationship to be marked as a Common Law marriage, but it's not remotely clear what the status means, whether it's just a fancy way of saying Unmarried or what.

Anyone had to deal with that confusion?


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While I would agree with you that in law a Common Law marriage did not exist in England it certainly did in practice.
Ask any couple who fell on hard times if the social services treated them as two individuals or a couple.
The DHSS automatically assumed that a man and a woman living in the same house were a couple and the man had to support the woman i.e. they were in a common law marriage.

I don't know if anybody stood up against such a deciscion and I doubt it had any legality but it certainly cut down on the DHSS liability.

So to me it does not come as a surprise that many think common law marriage was allowed in England

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