Common Law Wife

The Myth of Common Law Marriage

Written by Keith Doherty

The expression, “If I had £1 for every time someone said……” rings especially true for Family Lawyers on the subject of Common Law Husband or Wife, or more recently, Common Law Civil Partners. Sadly, in all cases, there is simply no such thing, and no matter how widely believed or strongly held this assumption is, the law for unmarried couples remains very different to those for married couples and anyone believing otherwise, could be leaving themselves financially exposed in the future. As such, it is a dangerous myth.

In truth it can be hard telling the lovely client sitting opposite you that they have no claim against pension funds nor income of their long-term partner following a split. Even in the circumstances where their partner has managed to achieve certain assets in part because your client stayed home to look after their now adult child whilst their partner worked, notions of fairness will not be the last legal word in this argument.

Myth Busting For Modern Times

A recent survey showed that over half of UK citizens still believe in one of the biggest urban myths, that of the ‘common law marriage’. 58% were not aware that this is not a recognised legal status or that living together does not automatically give rise to the same legal rights against their partner that they would have had if they had been married.

The number of cohabitating couple families continues to grow faster than married and lone parent families, yet many of those couples do not know that they are not entitled to the same rights as married couples. No matter how long you have been together, cohabiting couples are not afforded the same legal rights against each other as married people, whether in relation to maintenance, property ownership or pensions.

Instead the law relating to unmarried couples is a messy combination of different pieces of legislation. Where there are no children, any claims are based in strict rules of property law and complex rules of Trusts. If there are children then claims under the Children Act 1989 Schedule 1 might be possible. However, these claims are limited to receiving money for a particular purpose for the benefit of a child.

In this, England and Wales lags behind other jurisdictions including Australia, Canada, New Zealand, Sweden and Scotland that have introduced statutory schemes for cohabitants.

What Can I Do To Protect My Interests?

At the outset of a relationship it is recommended that a couple enter into a cohabitation agreement also known as a living together agreement. This can set out what should happen in the event of a breakdown of a relationship as well as detailing arrangements for day-to-day expenditure if wished. If buying a property, then you need to take legal advice on the best way to own that property, and that may involve entering into a declaration of trust, which shows how the property should be divided on sale. This can provide for unequal contributions. If you are already living together and don’t have an agreement, it is not too late. You can still enter into an agreement, and so provide yourselves with peace of mind in the event of a future separation. It may seem unromantic, but set against the invidious position you could find yourself in without one, then it is worth it.

Likewise, consider having wills drawn up. That way you can plan to protect the survivor in the event of the first death. These simple steps can help unmarried couples to protect their interests and fortify their rights should the relationship come to an end.

If you’d like to speak to one of our experienced team about creating a Cohabitation Agreement and discuss what can and can’t be included in its terms, please contact us to arrange an appointment.