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The Rights of the Common Law Spouse

“We’ve been living together for years. We’re practically married.”

Practically, perhaps, but not legally. If you are a so-called ‘common law spouse’, living (or ‘cohabiting’) with – but not married to – your partner, you should not believe you have the same rights as a legally married spouse. In fact, you might have no rights (regardless of how long you have been living together) unless you have separately and legally secured that protection through, for example, property law relating to the ownership of your shared home.

15 December 2016
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Although moving in together should be an exciting step, therefore, you still need to think prudently about the future. Whether you are planning to cohabit indefinitely or only until marriage, what will happen if your relationship ends or one of you dies?

Questions to answer as you plan cohabitation include:

  • ‘What assets (such as property) do we each have? How much are those assets worth?’
  • ‘Will we jointly own the property in which we will live or will one of us have sole ownership? Will we pay together for major repairs or improvements to the property?’
  • ‘How much do we each earn?’

One option you can pursue is to put aspects of your relationship with your partner into writing in a ‘cohabitation contract’ or ‘cohabitation agreement’. A solicitor can help you draw up the agreement, which might, for example, outline how you plan to regulate your finances together during your relationship (such as the payment of household bills) or clarify how you will resolve your financial affairs if your relationship permanently fails (such as how to fund the need for two homes). However, although a cohabitation agreement will give you a sense of comfort and security, you should check with your solicitor on the extent to which the agreement can be enforced. Without a legal obligation, well-intentioned promises can be broken when a relationship collapses acrimoniously. Your solicitor might advise you to sign separate and legally enforceable agreements on specific matters, to complement your cohabitation contract. Making or updating wills is also essential.

Fundamentally, the law regards couples living together as unrelated individuals and so you have no legal right to claim maintenance (financial support) from your ex-partner after the failure of your relationship. This point holds true no matter how long you have been living together and regardless of personal and financial sacrifices made during the relationship.

As mentioned, property law can be important in matters of ‘common law marriage’. If, for example, you are the sole owner of a property, you can add your partner as a joint owner through a process called ‘transferring ownership’. You can therefore become ‘tenants in common’ or ‘joint tenants’. Joint tenants hold equal rights to the whole property whereas tenants in common can own differing shares in the property. As joint tenants (sometimes known as ‘beneficial joint tenants’), the property automatically passes to the other owner if one of you dies and you therefore cannot pass on your ownership of the property in your will. If, however, you and your partner are tenants in common, the property will not automatically pass to the other owner if one of you dies and you can pass on your share of the property in your will.

Be warned, effectively paying ‘rent’ to your partner, the sole owner of the house in which you both live, is no guarantee in itself of any financial return should that partner choose to end your relationship, sell the house and move on.

With stigma rarely attached anymore, the popularity of cohabiting is growing but a ‘common law marriage’ is not the same as an actual marriage. If, sadly, your ‘common law’ relationship fails, you will not receive the same legal protection as a married couple divorcing. Don’t realise your mistake too late. Talk to a solicitor now.