The Elephant In The Room: Common Law Spouses

According to the Office for National Statistics, the number of cohabiting couples increased by 50% between 1996 and 2004, as the number of people marrying and divorcing decreased. It is an obvious social shift which has not resulted in changes in the law to protect the financial disadvantaged. If you are one of the four million who cohabit, you may need to be aware of your rights.

But hang on you say? I’m a common law spouse, aren’t I? After two years of continuous cohabitation, I gain the same legal rights over my partner’s assets and income as I would if I were married! Unfortunately, this is a pervasive myth, believed by 61% of people polled by the organisation Advicenow. It is a hangover from legal rights abolished in the eighteenth century and no longer applicable. In fact, cohabiting couples have few legal rights upon separation and, because of differences in the way in which courts deal with claims to assets when couples aren’t married, the carpet can really be pulled from under you if you don’t think about your legal position.

In short, cohabiting couples have no automatic rights to property, pensions or other assets which aren’t held jointly already and there is no requirement for an earning partner to pay maintenance to the other, whatever the circumstances within the relationship. For example, if a house is held in one partner’s sole name, and the couple live there for 20 years but don’t establish any intention to share the equity in that property, the person without the legal interest could have no rights to claim any money from it and could be made homeless if the relationship breaks down. The law in this area is complex and court battles far too expensive for most people to contemplate, and, without sensitive handling, the position can lead to an impasse and serious injustice.

Along with financial considerations, separating couples can encounter problems when their partner dies, or in being consulted about arrangements for their children and their ongoing welfare. If you do have concerns, you should seek advice so that you are protected as far as possible should plans go wrong.

The solicitors at Gardner Croft are all members of Resolution, a national organisation of family lawyers, who have collective guidelines to deal with cases with the minimum of acrimony and cost. It is Resolution who have been lobbying the government over many years to require a change in the law so that disadvantaged people in the process of separation have clear legal rights they can enforce if they have to. Although there have been no changes yet, with cohabitation the choice of the majority of people in the UK today, separating couples need better options than they have a present.