Introduction

Today, few social distinctions are made between those who cohabit rather than marry or enter into a civil partnership. Yet the law in England and Wales continues to draw a sharp distinction between formal and informal couple relationships, particularly on relationship breakdown or the death of a partner. In so doing, the law assumes that people are ‘legally rational’ and that a conscious and informed choice is being made by couples exercising their autonomy with full knowledge of the legal differences between these functionally similar relationships. Yet how realistic an assumption is this, and how far should such assumptions be permitted to influence the family law reform agenda?

Drawing on nationally representative research from the British Social Attitudes survey conducted in 2018, which demonstrates that, despite public information campaigns, the ‘common law marriage myth’, whereby people falsely believe that cohabitation gives the same legal rights as marriage, is alive and well, this chapter will first consider the flaws in the assumption that couples are making an informed choice and the implications for family law and policy. It will go on to suggest that another dimension to this myth has recently been exposed which reinforces the need for caution in assuming that conscious, mutual and autonomous choices are always being made. This aspect involves a discussion of a further category of couples who are treated in law as ‘cohabitants’ yet who may similarly be unaware of their different legal status. Unlike informal cohabiting couples, these couples have actually gone through a religious ceremony of marriage in England and Wales but have failed to comply with the formalities required by law. This is a situation most common among (but not exclusive to) Muslim couples marrying in England and Wales. While on the face of it, informal cohabitants and those in religious-only marriages are unlikely to share attitudes on the importance of marriage, many of them do share not only a common fate in terms of how the law views their relationships, but also a belief that the law either does or ought to recognize their unions and provide family law protection automatically, given their accepted and normalized family practices and lived experience or ‘lived law’.