What is a common law husband or wife?

The phrase ‘common law spouses’ is often used to describe a couple who have been living together for a significant period of time. However, there is no such thing as a ‘common law marriage.’ In England and Wales only people who are married or in a civil partnerships can rely on the laws established for the division of matrimonial assets and liabilities following a divorce or dissolution of a marriage.

Anyone who is not married, regardless of the length of their relationship, whether they owned property together or shared parental responsibility for children, will not have acquired rights similar to those of married couples.

In recent years there has been a reduction in the number of couples getting married and an increase of those who choose to live together (cohabit) and have a family without a getting married. Often when the relationship ends, the parties are not aware that, despite the length of time they have cohabited, they have no additional rights.

There is scope to apply to the Court for financial provisions where there are children, under Schedule 1 of the Children Act, however, these orders are for the benefit of the children only and not to support the other person. Child Maintenance for the non-resident parent is also for the benefit of the children only.

If couples are living in a property either owned jointly or in one persons sole name, Trusts of Land and Appointment of Trustees Act 1996, gives the courts certain powers to resolve property disputes. However, this would not take into account the same factors as would be considered if you had been married and the Matrimonial Causes Act 1973.

Another consideration is that if a couple is cohabiting and one party dies without a will, there is no automatic entitlement for the surviving party to inherit anything from the deceased estate, even the ‘cohabited’ family home.

In order to protect both parties, you should consider entering into a cohabitation agreement to decide how money and property should be divided if you do separate.

A cohabitation agreement can cover a number of things, including but not limited to, how rent, mortgage or household bills are paid, property and assets, owned before the relationship or bought while living together and arrangements for children.

For an agreement to be valid, both need to enter into it freely and voluntarily, the agreement needs to be in the form of a deed, each person needs to sign it and it needs to be kept up to date for major life changes. Each person should get legal advice independently of one another to make sure that they understand it and you should each keep a signed copy.

If you would like to discuss cohabitation agreements or what happens if you and your partner separate and are not married please contact our Private Family department on 0121 233 2042.