Many couples in the UK are now living together without getting married. A lot of them, by doing this, have the same legal rights as married couples do. However, this is not always the case. Common law partner is a term often used, but it does not have a clear legal definition.
Getting a grip and understanding your rights as a common law partner, especially in the UK, is quite important. Whether it's about property, finances, or parental responsibilities, knowing where you stand can help you avoid legal issues. This blog explains what the term means, the principles that underlie it and a lot more.
What is common law marriage?
Common law marriage, despite widespread belief, does not exist in the UK. Therefore, couples who live together without marrying or entering a civil partnership do not have an automatic legal right. This applies regardless of the length of their relationship or whether they have children. This is a quite major misconception that can lead to many legal and financial difficulties if the relationship ends or one partner dies.
Technically, in England and Wales, the law treats partners who are living together as separate individuals with no special treatment. Unfortunately, they do not have the same rights as married couples or even civil partners. This includes matters about property, inheritance, or financial support. Let’s say if one partner dies without a will, the surviving partner has no direct right to inherit the partner's wealth.
However, this is different in Scotland, where they abolished their form of common law marriage in 2006. Although it gives limited rights to couples who are living together under special circumstances. In Northern Ireland, couples can apply for financial help from a deceased partner's estate if they meet the criteria. As such, with no concrete and comprehensive legal protection, advisors urge cohabiting couples in the UK to find a legal way to secure their interests, such as cohabitation agreements or wills.
Principles of Common Law
Common law is based on ideas that promote fairness and consistency. Hence, decision-makers must follow multiple key principles when they decide something in this type of law. All of this ensures fairness, and they follow the key idea of this law. This, in the end, makes an overall fairer and more realistic decision process, as someone can find the precedent to expect what happened. Therefore, here we are going to list and explain all the principles:
- Judicial precedent: Where courts follow earlier decisions in similar cases.
- Stare decisis: Means to stand by things decided. This principle ensures that lower courts follow the rulings of higher courts, creating a clear structure in the legal system.
- Judicial interpretation: Judges look at statutes in the context of individual cases, allowing the law to change and adapt to current issues.
- The rule of law: This rule supports the common law by promoting fairness and accountability.
- Adversarial method: This principle is where two opposing sides can share their arguments and evidence in front of a neutral judge or jury, who then makes a decision.
Common law and civil law
The two main legal systems that are being used today throughout the world are the common law systems and the civil law systems. Although there are some who use a mix of both. Well, what is the difference? To put it simply, this legal system uses past court decisions to help make new ones, while civil law systems mostly follow written laws and rules.
The civil law system, which started in mainland Europe, is based on a clear set of written laws that explain how to handle cases and what punishments apply for crimes. Simply put, civil law systems have clear rules for how judges need to rule in many specific disputes. Unlike the common law system, civil law court decisions are not binding in other cases, even if the facts are similar.
Does the UK use common law or civil law?
The United Kingdom mostly uses the common law legal system. This practice is mainly rooted in judicial precedents and case law, which rarely rely on written laws. This all started in medieval England, which back then relied on judges' interpretation of legal principles, with past court rulings to decide future decisions. Meanwhile, statutes or legislation existed back then, the court played a major role in shaping the legal doctrine.
The UK’s common law tradition heavily contrasts with the civil law systems. Most importantly, in the prioritising of comprehensive legal codes that are enacted by lawmakers. In civil law, judges apply the law directly to the offence or situation with little to no consideration of previous verdicts. The way it works in the UK is that judges have the ability to interpret laws and fill gaps in the legislation. This often relies on previous judgments.
This law system was set as a precedent in a landmark case like Donoghue v Stevenson (1932), which established negligence principles. This case gives examples of how courts shape legal standards. The UK relies on judge-made law, which underpins its enduring legal identity. It is differentiated from civil law, like in Germany or France.
Advantages of common law
There are major advantages of common law, which is why so many countries like the UK still use it. Their flexibility allows them to adapt to overall changes through the judicial process, allowing judges to interpret laws for all kinds of changes. This made it highly adaptable, ensuring the legal system remains relevant throughout history to come.
Consistency and predictability are central to common law, as precedents ensure similar cases are treated alike. This precedent exists to go back to help with stability and anticipate legal outcomes. Additionally, detailed cases can help clarify legal principles through previous rulings. This overall accumulation gives accuracy and fills any loopholes that the lawmakers have missed, thus allowing a more balanced and coherent law.
Finally, judges play a huge role in these practices, making use of their knowledge and experience of previous case rulings. Their decisions have to be fair, practical and guided by legal rules and passed decisions. This helps the system work well in real-life situations. Which in turn makes the law practice flexible, fair and robust enough to handle change.
Disadvantages of common law
There are disadvantages as well related to the common law. Its reliance on extensive precedents will create a complex web of information. Such as navigating vast case histories that demand specialised legal know-how. All of this can create inconsistencies that may emerge when courts interpret laws differently, which can lead to conflicting rulings. Moreover, with such a vast legal web, evolution can be really slow as changes rely on those precedents in individual cases.
The system's access often requires quite expensive expert assistance, which makes it harder for someone with a lower income or even limited resources. The other thing is the issue of the system being hinged on an unelected official, which can lead to democratic concerns. All of this is an issue even in the modern form of law, which we can see directly in the UK.
Conclusion
Common law is a flexible legal system that changes based on court decisions and judges' interpretations of the law. This ability to adapt helps it keep up with societal changes, but it also requires careful navigation in the courts. However, in terms of legal cohabitation, there are no legal precedents for it. Therefore, having legal safeguards is key for protecting your overall interest.
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