Common Law Spouses

All too frequently we hear that phrase “common law spouse”. What many people do not appreciate is that legally, there is no such thing.

The only way you will be considered a spouse, and therefore have full financial claims against the other on divorce, is to be legally married to or in a civil partnership with that person.

If you have been in a cohabiting relationship, be it for 3 years or 33 years, you are legally considered cohabitees and nothing more. To confuse matters further, cohabitation is not defined in law in this country.

What are the implications of being a cohabitee rather than a spouse?

 The financial claims open to you on the breakdown of your relationship will be considerably different.

The table below outlines the differences in your position in terms of the financial claims open to you:

 

COHABITEE SPOUSE/CIVIL PARTNER
No claim against pension accrued by the other party during your relationship. Automatic ability to claim against other’s pension.
Your rights in relation to the property you live in will be dictated by the legal ownership status and the provisions of complex Trust law. Claims for capital and property are quantified based on your “need”. It does not matter if you are a legal owner of the property; you still have a full claim against it.
Your cohabitee has no legal duty to support you financially. Maintenance claim in your own right, in addition to any child maintenance.
Child maintenance is payable at the rate quantified by the Child Maintenance Service. Child maintenance is payable at the rate quantified by the Child Maintenance Service.

 

The number of couples living together, but not married or in a civil partnership, doubled between 1996 and 2017. Often cohabiting couples raise children together and make life choices based on their home set up; for example when one parent gives up their career to care for the children of the family. In a divorce situation, that party could make financial claims against the other. Their contribution as the primary carer for the children would be considered equal to any financial contribution made by the other. If you are a cohabitee, this is not the case and you could be left in a situation whereby you receive minimal capital and child maintenance at the set rate and nothing else.

There have been calls to update the cohabitation laws in this country for some time now as the current provisions simply no longer reflect the society we live in. Unfortunately, time and time again people are being left high and dry due to the lack of legal protection for cohabitees.

Are there any steps I can take to protect my position?

When purchasing a property as an unmarried couple you should seek legal advice as to whether the property will be owned as joint tenants or tenants in common.

  • Joint tenants – this means that you and your partner will both own the entirety of the property.
  • Tenants in common – this means that you and your partner own a specific share of the property. If you do not enter into a Declaration of Trust, this will be presumed to be a 50% interest. If one of you is making contributions in excess of the other, or are receiving money from family to assist with the deposit, then it is best practice to record this in a Declaration of Trust. This will record your precise interest in the property.

We would also recommend that you also enter into a Cohabitation Agreement to deal with the wider issues involved in cohabiting. This document sets out:

  • Each party’s rights in relation to the property;
  • Financial arrangements between the parties;
  • What will happen if the parties no longer wish to cohabit.

Cohabitation agreements are not legally binding, but they are persuasive should a dispute later arise. They are the best possible protection you can put in place should you be intending to cohabit as they set out, in a formal signed document, what your intentions are. Often preparing such a document can prevent a dispute as you both know where you stand, should your relationship break down.

A well drafted cohabitation agreement should be thorough and comply with the ordinary principles of contract law to ensure its validity.

Please contact a member of the Trethowans Family Team today if you require advice on your current living arrangements

 

Article written by Eloise Down