To wonder if “common law husband/wife” is actually a thing in Scotland

[Mammylamb]

I keep hearing people who have been cohabitating for a significant amount of time I’m scotland say they are protected as a common law husband /wife. For example if one person has the house in their name, their partner is entitled to half of it (even if they aren’t married or have a legal agreement to that effect). I always thought the “common law wife” was just nonsense I’m scotland

Yabu: you have legal protection as a common law husband/wife in Scotland

Yanbu: no of course you don’t

Strange. I did my Scottish law degree in the last 10 years and it was one of the first things my family law lecturer said to us.

Perhaps the different approaches depend on whether people are using the term ‘common law marriage’ in the strict legal sense, or in a more general sense to encapsulate any form of non-statutory marriage / parallel relationship? My lecturer was very clear on emphasising the differences between irregular marriage and true common law marriage, but I understand that many people would view common law marriage as a wider term beyond its strict legal definition.

Then your lecturer was wrong.

Perhaps, but you’ll understand I have a little more faith in them than in a random from the internet

Scotch bunnet, when I did my law degree (1982-1986) we had lots of case law relating to common law marriage. There were the easy cases where the couple had genuinely thought they were married (the 15 year and 363 day old bride) but also a lot where the couple had presented as married for years and felt they couldn't get married because of the scandal that the revelation they weren't married would cause. They worried that someone would see the Notice of Impending Marriages outside the Registrar's office, it would be the talk of the town and their kids would be bullied. The decision as to whether or not they had a common law marriage hinged on questions such as whether they were known as Mr and Mrs to everyone (is the butcher's bill addressed to "Mrs X"?)

The cases illustrated what was a vanishing way of life. By the 1980s the idea that a couple guarded the secret they weren't married to the point that they felt they couldn't get married was anachronistic.

We have a great expression for this in Scotland - a bidie-in. Someone you bide (live) with, but who aren't married to.

Lots of people in Scotland think it's a legally recognised status though, in the same way as lots of other people in other parts of the UK think it gives you rights too.

It’s still a common misconception in much of the U.K.
Levels of ignorance about such basics are IMO frightening.

Such matters should be included in personal and social education in schools - especially for girls - if they still have such a thing. Though even that won’t be much use if they’re bunking off or not paying attention.

@BoggiesBonnieBelle

Scotch bunnet, when I did my law degree (1982-1986) we had lots of case law relating to common law marriage. There were the easy cases where the couple had genuinely thought they were married (the 15 year and 363 day old bride) but also a lot where the couple had presented as married for years and felt they couldn't get married because of the scandal that the revelation they weren't married would cause. They worried that someone would see the Notice of Impending Marriages outside the Registrar's office, it would be the talk of the town and their kids would be bullied. The decision as to whether or not they had a common law marriage hinged on questions such as whether they were known as Mr and Mrs to everyone (is the butcher's bill addressed to "Mrs X"?) The cases illustrated what was a vanishing way of life. By the 1980s the idea that a couple guarded the secret they weren't married to the point that they felt they couldn't get married was anachronistic.

Which is not the same as saying common law marriage exists in law as the poster is trying to argue. It does not. I’m no lawyer and even I know this. These cases would be if there should be a protection afforded, not that it is automatically so because that’s the law. So effectively challenging that the concept doesn’t apply and it should, concept being the key word.

Bluntness 100 if someone in Scotland established a common law marriage prior to 2006, then that common law marriage would still exist. To that extremely limited extent, it is possible to have a common law marriage in Scotland. However, even prior to 2006 the case law which defined common law marriage demonstrated that the standard of proof was extremely high. The couple had to present themselves as a married couple, and neighbours and acquaintances had to believe that they were a married couple.

This (below) explains the legal position after 2006 of people living together unmarried in Scotland:
www.drummondmiller.co.uk/news/2018/03/cohabitation-an-overview/

(Unless, of course, they are one of the very rare couples who have been to court and managed to establish that a pre- 2006 'marriage by custom and repute' genuinely existed before that date.)

Not to be pendantic, but it’s not common law marriage legally though.

The term 'common-law' husband or wife is often used but has no legal standing. It is a common misunderstanding that a couple will have established a common-law marriage after living together for a period of time. This is not the case. Common-law marriage does not exist in Scotland.

There was a type of irregular marriage called 'marriage by cohabitation with habit and repute' which could apply to couples who had lived together and were thought to be married. This was rarely used in practice and, except for very particular circumstances, was abolished by the Family Law (Scotland) Act 2006. Only irregular marriages established before 4 May 2006 are recognised.

If you want to prove that a relationship which began before 4 May 2006 is a 'marriage by cohabitation with habit and repute', you will need to consult a solicitor for advice on how to do this.

Sorry - should have said 'with habit and repute' not 'by custom and repute' in earlier post.

Interesting historical article here:
academic.oup.com/jsh/article/47/2/507/1325355

@BoggiesBonnieBelle

You saying this kind of thing is why people get themselves into these kind of messes. You're stating that you could still try to argue that someone is in a common law marriage with someone from prior 2006. Yes you COULD TRY, but how successful are you likely to be? How much evidence are you going to have to submit to try and prove this? Do you think the person with the assets won't put up some kind of fight to not provide for their ex partner? You said yourself even prior to 2006 you had to provide a high level of evidence, I doubt they've made that any easier, probably harder. You'd be putting that person forward to build up a lot of legal bills for probably nothing.

Common law marriage does not exist in Scotland anymore. You can try for marriage by cohabitation with habit and respute, but your chances of being successful? I'd be doubtful. You're much safer not taking a stupid gamble and just signing the bloody marriage certificate. You arguing the point about common law marriage helps no one, all it does is make people believe something that is highly unlikely to save them.

fil and his partner claim to be common law married. as someone said above they have both been married before, and neither want the hassle of the "piece of paper"

Ive said that common law marriage isn't a thing - when fils partner moaned she wasn't able to be told anything by the drs when he was in hospital a while back (dh had to be told as he was NoK). she won't have it.

Hospitals will talk to a live in partner, they will talk to anyone who has been authorised by the patient.

I think cake makes a valid point

Because the facts remain. There is no common law marriage in Scotland.

There was no such thing abolosihed by family law in 2006 because it did not exist

There was a little known concept of irregular marriage with cohabitation by habit and repute.

But this would need to go to a court to be argued, rhe burden of proof would be enormous, inc everyone thinking you were legally married and you having a sound reason for not actually getting married Ie you would be so ashamed for people to know you were not married that you couldn’t do it. And since from well before this you could legally get married abroad very easily, for example I was married 26 years ago in St Lucia, you’d also have to argue you couldn’t even elope and do it in secret.

So bottom line is common law marriage doesn’t exist, there is no such automatically conferred legal right, and it would be a big and costly ask to try to prove to a court that you should have the same legal rights, because you lived together and everyone referred to you as married and you had a very good reason why at no stage where you actually able to just get married,

Cake, I think I am making the point that it is extremely, extremely unlikely that someone could establish a common law marriage. The cases we studied when I did my law degree involved couples who had to prove that either they themselves honestly believed that they were married, or that they described themselves as married for years / decades, and that none of their neighbours, or their kids' teachers etc realised that they were not married.

This level of ignorance is very common. Im not in the Uk and here is the very same situation. There is no such thing as common law and never existed. You wouldn't believe the amount of people who believe in this. I have zero sympathy for people who don't take responsibility for their lives.

One problem is the informal language used - it has been an issue on this thread. 'Common Law' is a colloquial term referring to everything from living together but without being married, to being a substitute phrase for the legal way co-habiting was named in Scotland before 2006.

Cake, I think I am making the point that it is extremely, extremely unlikely that someone could establish a common law marriage. The cases we studied when I did my law degree involved couples who had to prove that either they themselves honestly believed that they were married, or that they described themselves as married for years / decades, and that none of their neighbours, or their kids' teachers etc realised that they were not married.

Yes but you saying this could make people think that they would stand a chance in court. The likelihood is that they wouldn't, you're even admitting that. Even one case study where two people proved they were common law married from decades ago will make people think they can do the same thing. This is what causes these things to become 'true' amongst the public.

Bluntness, section 3 of the Family Law (Scotland) Act 2006 reads:

1. The rule of law by which marriage may be constituted by cohabitation with habit and repute shall cease to have effect.

This makes it clear that prior to the 2006 Act, marriage could be constituted by habit and repute. This is what was popularly known as common law marriage.