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Insights // 20 September 2016

Family Law & the Myth of the Common Law Spouse

Partner Claire Dyer, in our leading Family Law team, explores the myth of the common law spouse.

We are often asked “How long do I have to live with someone before I become their common law spouse?”.  The answer is that there is no such thing as a common law spouse under English law and no matter how long you have lived with someone, you will not acquire any additional rights.  This can have devastating consequences for some people and there have been a number of attempts to change the law in this area – so far without success.  There will be further attempts, but it is unlikely to be a priority in the post-Brexit aftermath.

If you separate from someone after cohabiting, your rights are limited to the following:

1. A share of any jointly owned assets 

If you are the joint owner of a property or properties, you will be entitled to your share.  Your share will be determined by how the two of you agreed to own the property when it was purchased.  Sometimes this is recorded in the property documentation.  Sometimes it can only be ascertained from surrounding communications – letters, emails, texts and sometimes verbal.  Where it is not possible to work out what was agreed, the court can be asked to ‘impute’ an agreement – essentially to work out what the parties would have agreed had they turned their minds to it.

Proceedings to determine disputed shares in a property, and to decide whether it should be sold, can be very expensive so it is best to ensure that there is a clear agreement, from the outset (ie when the property is purchased) as to who owns what.  In simple cases, this can be done in the transfer document, but sometimes a more detailed declaration of trust should be drawn up.  Your conveyancing solicitor should be able to advise you about this.

2. A share of assets held in the other’s name only if there was an agreement to this effect

It is very difficult to pursue a claim against a former cohabitee for a share of assets held in his or her sole name.  You have to be able to show that the asset was acquired for the benefit of both of you and that your former partner therefore holds it on trust.  This is very difficult to do.  If you have made a direct contribution towards the acquisition of the asset this might be enough, particularly if your partner made promises to you as a result.  Any indirect contribution, e.g. by paying towards household outgoings, caring for joint children, etc. will rarely be sufficient.  

In 1984, a lady called Mrs Burns found herself in that position.  She had lived with her partner for 20 years, taken his name and brought up their children (giving up her job as a result).  When she made a claim against him, she failed because she was not a joint owner of their property and had not made any direct financial contribution towards its purchase.  That would still be the position today, some 20+ years later when cohabitation is far more common.

3. Claims on behalf of joint children

If you're a cohabitee and you have children together you may have claims under the Children Act on behalf of the children.  

You can claim a lump sum on behalf of children, to cover specific purchases, e.g. baby equipment, a musical instrument or a car.  Such claims are relatively rare.

You can also seek a ‘settlement of property’ – essentially a purchase or transfer of property to enable you to provide a home for your children whilst they are under the age of 18, or occasionally until they complete tertiary education.  This enables you to ‘borrow’ your former partner’s money or interest in a property for a period of time, after which they are entitled to recover their share.  Whether you will succeed will depend on the overall financial circumstances, including whether you can afford to take on any associated mortgage.

You can also seek maintenance for children who are living with you.  In most cases this is now determined by the Child Maintenance Service formula, which is based on gross income.

What can’t you claim?

If you have cohabited, you have no entitlement to:

  • Maintenance for yourself, regardless of whether you have given up work to care for children.
  • A share of your partner’s other assets (except as outlined above).
  • A share of your partner’s pensions.

If your partner dies, you also have no automatic entitlement to a share of their estate, unless they have made a Will which benefits you.  This could leave you having to pursue expensive claims against the estate.

What can you do?

  • Make sure you have a clear signed agreement regarding interests in jointly owned assets.
  • Ensure that assets which are intended to be joint are put into joint names or that there is a clear signed agreement confirming your share.
  • Ensure that your partner has a Will which provides for you in the event of death – and vice versa.
  • Ensure that you make your own pension provision.
  • Think carefully before giving up work and becoming financially dependent on your partner.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.

Claire Dyer

Claire Dyer

Partner, Family Law

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