Common Law Acknowledgement Of Long-Term Cohabitating Couples Term Paper Sample

Type of paper: Term Paper

Topic: Marriage, Law, Relationships, Common Law, Love, Social Issues, People, Business

Pages: 8

Words: 2200

Published: 2021/01/01


Common Law marriage occurs in some states when a couple has lived together for a certain period of time. They may not have legally gone to perform a marriage but as a result of their long-term cohabitation they are considered the same as a married couple. Although the couple has not yet decided to get documentation of their marriage certain factors may justify them as a married couple. These factors include living together in the same home for a certain amount of time (one year or more), presenting themselves as a married couple and having an engagement to be married. Common law is similar to marriage awarding some protections and provisions to couples. For instance if there is a break up states that recognize common law and shared property laws would consider some sort of decision that would work for separation. When it comes to medically decisions generally immediate family is the only people that are allowed access to an injured person or the ability to make decisions about life support. If a person is not married and common law is not recognized this can cause issues in the circumstance they are faced with this unfortunate event. If a person is not able to prove that their marriage is recognized by common law particularly important issues may arise. The family of the person who is injured or dies can stop the common law spouse from having any participation in making decisions regarding there partner. They can also choose to not allow the partner any access to moneys or belongings in the event that there partner passes away. Some states choose not to recognize common law marriages no matter the length of time or circumstances surrounding the couple in question. However if the couple was able to gain common law recognition in a different area the state that does not allow common law marriages merit would recognize this one if the couple could establish proof that there arrangement is recognized elsewhere. This is because of the United States Constitution that does validate common law marriages in other places and is referred to as the full and faith credit rule (Larson, 2003).

The Matrimonial Property Act

The matrimonial property act states that two people who are married will share any property that the two of them obtained while married. This includes money accrued individually for instance if one spouse owns and rents property he or she is obliged to share the funds with his or her spouse. One issue with this act is that it generally does not cover relationships in which the couple is not married. One major issue with this act is that when it was put into place many years in the past women usually were at home and did not work. This is why it was important for the property between a husband and wife to be shared. However times have changed and women are more often excelling in the workforce and making enough money to substantially support themselves and so the act has rendered a great deal of criticism. Recently there is another option for a person that does not include marriage which is referred to as marvanizing the relationship. This new act has a great deal of attributes however it is still lacking in certain areas that must be addressed before it is able to go into effect (Reppy Jr., 2015).
One study attempts to discover if people who are not married however are cohabitating should be covered under the matrimonial property act when it comes to a common law marriage and or divorce. This also includes cohabitants that are living under a same sex relationship which is becoming more commonly recognized in many parts of the United States. With so many people choosing to live in long-term relationships that are like a marriage but without the legalities some researchers suggest the community property act be extended to include these partners legally for the purposes of dividing property that the couple acquired during their time together in the event of a separation. Although same sex cohabitations deserve respect there is little found by this study that would suggest they are similar to opposite sex marriages. This means that the standards of their marriage differ and must be regulated by a separate act in respect for the way that same sex partners view there lifestyle. The study does not attempt to devalue the relationships between homosexuals only to highlight that the community property act is more suitable for opposite sex partners who are cohabiting under what some states would consider a common law marriage. In many instances the act only covers awarding property to individuals who were legally married however in some courts common law marriages are also recognized under the act. The reason it is important to establish a law for cohabitating partners is to protect the interest of the partner in the event that things do not work out or one person passes away. There are two viewpoints which are considered, those of the people who feel that they are living in a marriage situation for a lengthy amount of time and those who feel the reason there was no choice to marry was because one or both parties did not want to enter into an agreement where there significant other would have rights over them or the properties. The recent efforts of the courts have been to establish a law that is able to equally recognize both of these valid considerations (Commission, 2007).


This study was a reflection of data on the subject that addressed common law and cohabitation from empirically. The instrument used was a compilation of data derived from other studies surrounding legal issues in common law as well as ethical concerns and diversity.

Ethical Standards

Ethically the common law act is an attempt to establish whether it is right or wrong to recognize people under common law marriage and award them similar benefits as married couples. The study highlights that common law marriages vary from one to the next and are not easily standardized into a single definition. Some are longer than others and some have different expectations and meanings. This makes the attempt to recognize them even more difficult and this is why the study demands there be a law enacted that will take notice of how diverse these arrangements can be while still protecting the interests of the people that do wish to share their lives without the legal paperwork. To do this the researcher suggests that common law be studied in its entirety along with cohabitating partners. The data that was gathered was able to support the fact that socially common law is accepted in communities overall. There is also recognition of how much these relationships do mimic marriages that are recognized by the state. Research has been able to identify that people in common law arrangements feel like they deserve the same treatment as married couples. This includes the right to financial support and community property. In many instances they are entitled to financial support from there partner however community property is not recognized as an entitlement. When considering what is right and wrong there are many different viewpoints. Some believe that people who share a child and separate should award the custodial parent with the home that the cohabitating couple resided in. However some argue that the marriage should not be recognized based on the autonomy theory (commission, 2007).
The autonomy theory is based off the principles that individuals should be able to govern themselves. This theory imposes that a person should follow and govern his or herself by a moral standard (Encyclopedia, 2015). Researchers that sympathize with the autonomy theory feel that the common law was formed long ago based off of principals that we no longer follow modernly. For instance the idea of having a marriage was developed in a time when women were considered the weaker sex and thus needed protection. The sympathizers of this theory suggest that it is not acceptable to expect women to live by the standards of the women that were alive then and therefor they suggest that the protections are no longer necessary as well. Based on the argument of autonomy the argument is that people in this day and age who choose not to marry are choosing to be more modernized and care for themselves and therefore they should not be awarded any protection under acts that were put into place for someone who was expected to live a life inside a home with no means to support themselves (commission, 2007). However other research suggests that this idea may in fact have no solid factual basis. Professor Probert investigated the myth of common law marriage concerning this view point. She points out that research actually highlight the term from an early time when explorers were traveling the world. Often they would meet a person and engage in marital activities and since there was no person available to marry them the marriage was recognized under common law. Another important aspect of this was that often times there was no ceremony held however the union of marriage was apparent and thus recognized under what was known as common law. It was not until the 1970s when people became frustrated with the confusion of common law that an act was put into place to protect persons who were dependent on someone who died. This was known as the Provisions for Family and Independents act (Probert, 2011).

Usefulness of the research design

This research design was able to use a broad range of collected data as well as other researcher’s opinions and viewpoints successfully to define key points when considering the usefulness of the matrimonial property act for cohabitating partners. It highlighted key points for both views on the subject. One side argued that there was no longer a need for common law marriage while the other strongly disagreed and presented their view. The study was able to flow logically presenting both sides without discriminating or creating bias to reach a solid conclusion that was formidable for both sides. The history as well as recent changes regarding partnerships and cohabitations was covered to ensure that the changes would be considered for the new suggestions for the act. The study was able to bring all of the research and data together to form a solid conclusion about the institution of marriage and the differences as well as similarities it had with cohabitating common law partnerships. One key argument was that some common law partnerships are lived separately however researchers point out that this happens in marriages as well and should be treated no differently. The bottom indication is that if people are cohabitating or portraying their relationship as a marriage they should be considered under common law and awarded the same rights as people that are married legally (commission, 2007).

Foreseeable Practical Benefits

The study was able to reach a conclusive opinion regarding the consideration for cohabitating couples to have legal protections equal to married couples. After considering many similarities and differences as well as highlighting cases that were presented in courts the overall agreement was that there should be some rights for people who are living in situations that are considered like a marriage. One thing that was undeniable throughout the study was the number of inconsistencies when it came to comparing marriage and common law marriage. For this reason the study was able to highlight several key concerns that would have to be taken into consideration before any act was able to be established that would protect people in common law marriages. The first key point is that common law relationships must be properly defined considering all of the data and different viewpoints. One suggestion for this definition was to model it after the same definition standard imposed on people who share a child to establish support obligations for these cohabitants. Here is a list of the things this research indicated must be addressed before modifying or imposing a new act:

Birth of child

The length of the relationship(however this has to encompass other factors as well)
People who were once married but now cohabitate after a separation
Situations including a spouse and cohabitant
Limitation for the time that a cohabitant can take action
There are many limitations that should be considered however these key points are of major concern for both sides of the debate. Without properly addressing each issue the act would be difficult to put into place however considering the similar lifestyles of cohabitants and married people it is important to grant some merit according to researchers. The last important topic is same sex marriages. The research was able to determine that these relationships differ from cohabitating partners in heterosexual relationships and therefore suggest that the laws differ between them. This is to make it possible to address a list of different and necessary concerns for people living in same sex cohabitations. The reason it is looked at separately is because in society and culture these relationships are viewed differently since there is no evidence presentable that the relationships are similar in nature. Some relationships do pose similarities like raising children and sharing fiscal responsibilities however this is not the norm when it comes to same sex cohabitation. In the case Egan and Nesbit v. R. there was a majority ruling that these types of relationships cannot be defined to be the same as traditional marriage. This is because the definition of a traditional marriage is based on a couple’s ability to procreate which is not actually possible for people that are participating in same sex cohabitation. The research study concluded that people in same sex marriages should be able to regulate their unions as well however based on the evidence that was gathered these unions require different standards. The reason the researchers present is that in many cohabiting relationships evidence gathered that many become much like a marriage. In the circumstances of same sex couples there is not enough evidence available to suggest the same intentions (Commission, 2007).


The research was able to conclude that there should be something similar to marriage for cohabitants that can be recognized under common law. It was this opinion that offered the suggestion of a registered domestic partnership which would allow cohabitants protection under many of the same legal principles as married couples. The reason that was given for not requiring marriage was that some do not participate in the practice for cultural and religious reasons however they are existing under the same paradigm. This would allow the two people to enter into a different contract that legally binds there assets and decision making abilities in the partnership (commission, 2007). The research available does suggest that the ancient definitions of marriage and legal viewpoints are in the least archaic and outdated. Imposing a new regulation would respect the decisions of people today who do not wish to enter into a marriage which is bound by religion and still offer them legal rights that are necessary to consider when two people decide to join their lives for a long period of time.


Commision, O. (2007). Common Law Relationships Under the Matrimonial Property Act (1st ed., p. all). Ontario Law Commision. Retrieved from
Encyclopedia, S. (2015). Autonomy in Moral and Political Philosophy. In Stanford Encyclopedia. Stanford.
Larson, A. (2003). Common Law Marriage. Retrieved 26 March 2015, from
Probert, R. (2011). Research reveals Common-law Marriage is myth created by 1970s press. Retrieved 26 March 2015, from
ReppyJr., W. (2015). The Uniform Marital Property Act: Some suggested Revisions For A basically sound act. Retrieved 26 March 2015, from

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