Common Law Husband, Common Law Wife, do they exist in the eyes of the law?

How often have you heard the statement well he’s my common law husband or she my common law wife down the pub?

Many people today believe that there is such a legal concept of common law husband or wife which gives rise to similar legal rights as those who are actually married. Many people think that after living with their partner for a few years that they become “common law husband and wife."

This is not the case and couples who cohabit do not have the same rights as married couples or civil partners.

There is no such thing as “common law marriage”. There are some 5.9 million couples living together in England and Wales. These couples and their children have significantly fewer rights and responsibilities, than those couples who are married or who have formed a civil partnership.

If you are cohabiting with your partner then there are some steps that you can take to protect both yourself and your partner that may minimise the legal and financial problems that may arise if you decide to separate or if one of you dies.

Mark Mosley Partner and Head of the Family department at Vincents comments “There are steps you can take prior to cohabiting or buying a property intended for both to live in, such as a cohabitation agreement dealing with rights to the property and other assets acquired over the course of the relationship, the agreement could even cover what would happen in the event of having children together or concerning children from a previous relationship. If buying a property but contribution is not equal a trust deed can be created dealing with who is entitled to what if or when the property is sold.”

Mark adds “The problem is that most people don’t consider the future and certainly don’t want to consider what if it went wrong, a similar attitude prevails with wills and pre nuptial agreements. What we are trying to do is explain that such measures taken now are a type of prevention because without it the cure is costly, slow and uncertain.”

Here’s an example of how things can get very messy and difficult to untangle without some sort of written agreement in place if you aren’t married. Imagine the position, a property was bought in the man’s sole name because he has the income to obtain the mortgage but the deposit is made up as follows: 75% from the woman’s parents and 25 % from the man. The woman’s parents have loaned the money to her. They are together 15 years and have 3 children. The woman inherits some money and uses it fund the building of an extension. Both work full time, save for the time the woman takes off for maternity leave, equally contributing through joint accounts for the mortgage, husbands pension and savings .The relationship ends who is entitled to what and moreover what are the legal rights of both, what about the children.

Mark comments that “Scenarios such as this are not uncommon and without a cohabitation agreement we would have to disentangle the parties financial relationship and establish what agreements they thought they had, you would be surprised to know how different each recall matters following a breakdown of their relationship.”

Mark further adds “People will always think of now and never want to plan ahead for the negative, but especially those who have a nest egg to invest or have a settlement from a previous relationship really ought to take advice and protect themselves as much as they can.”

Mark Mosley Is a Partner at Vincents Solicitors. He is the Head of the Family Law department. He has 20 years Family law experience, he is a member of Resolution, a Resolution trained Collaborative Lawyer and a Law society family Law Panel Accredited.

If you would like advice or help in setting up a cohabitation agreement you can speak to Mark at our Preston office.