Common-Law Spouse – What’s his/hers is mine

What is the meaning of Common-Law Marriage?

Whilst it is the case that people are often referred to as common-law wife or husband when they are living together, in fact and in law, there is no such thing as common-law marriage.

Many people are under the impression that after having lived with their partner for two years or more they attain the same legal rights as a married couple.  This is not the case and co-habiting couples have very few legal rights.

Over four million people in England and Wales are co-habiting without being legally married to each other or having entered civil partnerships.  Many people are living together under the impression that they have legal rights when they don’t and, sadly, don’t discover this until it is too late and they are either on the verge of separating or have separated.

We are separating.  What am I entitled to?

This will usually depend on whether any property is owned by you and/or your ex-partner and, if so, in what way that property is held if jointly owned.

If the property is owned in the sole name of your ex-partner, it may be virtually impossible to establish any claim in relation to the property, even if you have made contributions towards it and/or the upkeep of the property.

In January 2013 the case of Curran –v- Collins was considered by the Court of Appeal.

By way of background, Miss Curran had been in a relationship with Mr Collins since the late 1970s and worked with him at his kennels and cattery.  Following the end of their relationship in 2010 a County Court Judge ruled that Miss Curran did not have a right to either a share in the business or the home in which she had lived with Mr Collins, which effectively left her penniless.  Mr Collins asserted that the couple had only begun permanently cohabiting in 2002.

Miss Curran was granted permission to appeal the decision of the County Court in relation to this matter, which she did.

Evidence was put before the Court of Appeal confirming that the couple had initially started dating when they were teenagers and had remained a couple until they separated in 2010.

The couple lived and worked together at The Haven, which was a kennels and cattery business purchased in the sole name of Mr Collins in 2007.

Prior to their separation Miss Curran had trusted Mr Collins and been under the impression that if the relationship ever ended he would give her a fair share of the property and business, which had been purchased for a combined total of £750,000.00.

Miss Curran gave evidence informing the Court that she had worked hard to make the business successful, but had been left with nothing.

Lord Judge Toulson (sitting in the Court of Appeal) referred to a report prepared and published by the Law Commission in 2007, which had recommended that current property laws be reformed due to the unfairness to those in similar positions to Miss Curran.

The Law Commission report recommended ending rules which dated back 86 years to enable cohabiting couples to have the same rights as married couples and those in civil partnerships.

In 2011 the Government announced there were no plans to change the law in relation to cohabitation.

Miss Curran, therefore, lost her appeal in the Court of Appeal, in view of the fact that the Judges considering the Appeal were only able to apply the law as it currently stands in relation to cohabitation and property rights, despite the seemingly unfairness of the situation to Miss Curran.

In England and Wales, when married couples divorce or civil partners dissolve the partnership, both parties have various legal rights in relation to a division of the assets and maintenance.  The judiciary have discretion, also, on determining financial matters to take into account various factors, including the circumstances and history of the relationship, to ensure a fair division of assets is achieved.

Cohabiting/common-law couples do not have an automatic legal right in relation to financial matters in the same way as those who are married or civil partners, regardless of how many years they have been in a relationship and/or whether or not they have children.

Dependent upon written or oral agreements between cohabiting couples, they may have some recourse under the law in accordance with the Trusts of Land and Appointment of Trustees Act 1996 (commonly referred to as TLATA), but such cases can be hard to pursue and would usually require the assistance of a solicitor.

If the parties have children together, it may be possible for the party with whom the children remain to claim for maintenance for the children, either from the Child Support Agency (CSA) or, in some limited cases, under Schedule 1 of the Children Act 1989.  Again, for the latter course of action, it would usually be necessary to consult a solicitor for advice.

In short, if any property and/or assets is held in the sole name of one of the parties, it will probably be the case that, despite contributions being made by the other party, upon separation the party whose name is not assigned to the assets may come away from a long relationship with absolutely nothing to show for it.

I am considering cohabitation.  What can I do to protect myself?

Under the current law, the only way to obtain protection when entering cohabitation is either to marry or enter a civil partnership, or to draw up a Cohabitation Agreement.

A Cohabitation Agreement sets out what belongs to whom and in what proportion and permits documentation of how any assets would be divided should the relationship break down.  It can also include how any children would be provided for, above any legal maintenance requirements, in the event of separation.  Details can also be included in relation to bank accounts, debts and joint purchases, for example cars.

The Agreement can also detail how the parties will manage day to day finances after commencing cohabitation, for example how much each will contribute towards rent or mortgage and bills and also whether or not life insurance will be taken out on each other.

emeryjohnson can assist you with the preparation of a Cohabitation Agreement, which may save both significant emotional and financial trouble in the future.  Prior to making an appointment it would be helpful if both parties could agree what belongs to whom, how assets should be divided in the event of a split and what they want from the agreement.

emeryjohnson can prepare a Cohabitation Agreement for you for a fixed fee of £500.00 plus VAT.  Further details in relation to this service can be found at:-  http://www.emeryjohnson.com/wp-content/uploads/2012/03/Fixed-Fee-Co-Habitation-Agreement.pdf.

A Cohabitation Agreement is legally binding as long as it is properly effected, which involves both parties obtaining independent legal advice on the Agreement.

Should I do anything else to protect myself legally

Yes.  It is strongly advisable for you and your partner to make Wills.  If you or your partner were to die intestate (without leaving a Will) the surviving partner would not be entitled to any of the deceased’s Estate as cohabiting partners are not recognised in English law.

Therefore, if you are cohabiting without being married or having entered a civil partnership, and it is your intention for your partner to inherit some or all of your Estate at the time of your death, it is essential to have a Will prepared to reflect this.

emeryjohnson currently do not prepare Wills.  However, if you wish to have a Will prepared, we would suggest that you contact Astills Solicitors (tel: 0116 249 4450).

Please note that from September 2013 emeryjohnson Solicitors will be merging with Astills Solicitors under the name of emeryjohnson astills and the location of the firm will be at the current premises of Emeryjohnson at 3 & 5 Welford Road, Leicester.  Following the merger the firm will offer wills and probate, conveyancing and advice and representation in civil litigation in addition to the current services offered by Emeryjohnson, namely family law, care proceedings (Social Services) and criminal law.