The Myth of the common law spouse

Many people believe that if you live together for a certain amount of time you become a “common law” husband or wife and you gain legal rights as a result.  Sadly, this is not true and the legal position of cohabiting couples is much more precarious than for those who are married.  There is no specific legislation to protect cohabitees – you are reliant on property laws and laws relating to your children (if you have children). 

Family lawyers up and down the land will have met with clients who have lived with their partner for many years and who have made various contributions to the relationship such as buying the food, paying for holidays, giving up work to care for the children and looking after the home.  Despite these worthy contributions, when the relationship ends, family lawyers are left in the unenviable position of breaking the news that the law entitles them to nothing because the house is owned solely by their former partner and the law does not provide for cohabitees to receive maintenance, cash or a share of their ex-partner’s pension.  This is in stark contrast to married couples, who are likely to be entitled to a share of the assets regardless of in whose name they are held and to maintenance in certain circumstances.

Is the law changing for unmarried couples?

The Law Commission recommended reform back in 2007 and proposed a change to the law which would remedy this injustice for qualifying couples who had made certain contributions to the relationship.  Various governments have rejected the case for reform – perhaps for fear that any change in the law would be seen to undermine marriage or maybe as this is not a priority and it’s easier to kick this particular issue into the long grass.  This seems a ridiculous position to take when living together without getting married is a social trend that increases year on year and is unlikely to reverse.  The current law is simply unjust and in need of reform –our neighbours north of the border in Scotland have managed this back in 2006 and it’s time we followed suit.

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