The common law wife: fact or fairytale?

Posted: 03/11/2017

Do you know how long it takes to become a common law wife? Is it: (a) six months, (b) two years or (c) five years? The answer is (d) none of the above. It is a commonly perceived myth that there is such a thing as the common law wife. In truth, cohabiting couples have very little protection when it comes to relationship breakdown. With marriage rates declining and cohabitation rates increasing, the lingering myth of the common law wife is serving to leave a significant number of people in our society vulnerable and surprised that the law does not offer them similar protection to their married counterparts. It is with this in mind that Resolution is holding ‘National Cohabitation Awareness Raising Week’ from 27 November to 1 December 2017 to raise public awareness of the lack of rights that exist for cohabiting couples. The purpose of this article is to examine the law as it stands for cohabitants, look to the future and consider practical and protective steps that can be taken.

Cohabitants on separation

In contrast to married couples, there is no statutory framework to empower the courts to divide all of the assets of cohabiting couples. As the law stands, married couples enjoy superior rights over property, pensions and inheritance. On marriage breakdown the court has the power to redistribute property and finances but it has no such power to do so on the breakdown of a relationship between cohabitants. A cohabitant can only turn to contract, property or trust law for help and pursuing claims in these areas is often complex, uncertain and expensive.

Cohabitants on death

In contrast to married couples, cohabitants do not benefit automatically under the intestacy rules. Nor is there any exemption from inheritance tax on assets passing to a cohabitant. It is essential therefore that cohabitants make provision for their partner in their will if either partner wants the other to be provided for financially in the event of death. Further, in contrast to married couples, the courts cannot divide pensions for the cohabitant. It is therefore important for any cohabitant who is a member of an occupational or private pension scheme to check the scheme rules for details of any benefits that may be payable to a partner and/or dependant.

Cohabitants with children

Fortunately there is little distinction between married and unmarried couples under the Children Act 1989. If arrangements for the children cannot therefore be agreed between the parents, whether married or unmarried, it is possible to seek the intervention of the court on such matters as with whom the child should live and how often they should see the other parent. Further with regard to child maintenance the Child Maintenance Service makes no distinction between married and unmarried parents and the parent’s liability is not dependet on his or her marital status. Despite this, there are still legal limitations for cohabitants. For example, an unmarried father (in contrast to a married father) does not have automatic parental responsibility. Parental responsibility includes amongst other things the ability to make decisions determining religion, education and consent to medical treatment. Schools, medical and other authorities may refuse to recognise the request for information from a parent who to their knowledge does not have parental responsibility. An unmarried father can obtain parental responsibility by having his name on the child's birth certificate, by obtaining a court order or by entering into a parental responsibility agreement with the mother. The agreement must be in a particular format and be registered at court.

Practical issues and protective measures 

In the light of the continued lack of legal protection for cohabitants, they should consider a number of practical and protective measures. 

Cohabitants can:

• enter into a cohabitation agreement to seek to give legal effect to their relationship. The legal agreement would be a formal contract setting out how a couple’s finances are to be run and how assets are to be divided on the breakdown of the relationship;
• draw up a will making provision for each other and any children of the relationship;
• enter into a deed of trust setting out how beneficial interests in any jointly owned property are to be held;
• keep pension and life insurance nominations under review;
• consider getting married and the option of a prenuptial agreement in advance.

Jane Mitchell, head of the family department in the Oxford office of Penningtons Manches, advises caution, commenting: “In the absence of automatic legal protection, cohabitants should seek legal advice about their position at significant points in their relationship, not just when the relationship breaks down, but when a property is being purchased for their occupation and to ensure fairness on death.”

Conclusion 

Cohabiting couples are the fastest growing family-type in the UK with more than three million people living in this type of relationship. However, should these couples separate, they currently have little or no legal protection despite the myth of the ‘common law marriage’. The law now recognises civil partnerships which bestow many of the same rights upon civil partners as spouses within marriage but it is uncertain when it will change to provide formal protection to cohabitants. It is fitting that relatively recent reform in Scotland has seen the introduction of a framework within which to resolve financial disputes between cohabiting couples. Now it is high time for the rest of the UK to catch up and bring the law in step with how many couples are choosing to live their lives.

Return to news headlines