Do you think you are a Common Law Spouse?

Jo Spain, family law solicitor

More and more people are choosing to live together without being married.  Sometimes they have children together, often they jointly own a house and they may have joint savings or investments.

In fact, currently, 2 million couples live together in Britain without being married*.

But what happens if these relationships break down or if one of the partners dies?  Surely the other partner has acquired rights in their property and has a right to make claims through the Courts if they have lived together for 2 years, or 5 years or longer?

This is the myth of the “Common Law Spouse”.

The truth is that there are no automatic rights to property, pensions and other assets when the relationship ends and inheritance tax is usually payable when a partner dies.  Aside from child maintenance there is no obligation to pay the equivalent of “spousal maintenance”.  This may leave one partner in a very vulnerable position.

This may come as a shock to you if you are one of the 2 million cohabiting but unmarried couples.  In fact it is estimated that 60% of cohabitees believe that they have the same rights as married couples*.

In fact common law marriage did exist in the past but this was abolished in 1753.  Since then the protection afforded to people who marry has not been extended to those who choose not to.  The only exception to this is the Civil Partnership Act of 2004 which allows same sex couples to enter into civil partnerships and thereby acquire fairly similar rights to those of married couples.

Many groups have been lobbying the government for some time to look at changing the law.  In response to this the Law Commission has launched a project to investigate cohabitation focussing especially on the financial hardship suffered by cohabitees and their children when a relationship ends due to either separation or the death of one of the parties.

A formal consultation paper is to be published in May 2006 and we wait with baited breath to see what recommendations are made.

(*With thanks to Radio 4’s Woman’s Hour for these statistics.)

First Published in Kings Hill Directory May 2006