Cohabitation – there’s no such thing as a ‘common law wife’

On more than one occasion recently, I`ve been stopped in various locations “for a quick chat” about someone`s “common law” rights.

In less than a century, how we “do” romantic relationships has shifted massively. Gone are the days when the only acceptable route was engagement then marriage. Instead living together is now the fastest growing way in which we have relationships and shows no signs of slowing down.

Sadly when people do come to me for advice, I still find that many people (women especially) don`t understand their legal position particularly concerning their home, their income and their pensions.

Jo Grey, a senior associate solicitor at Cartmell Shepherd Solicitors (Image: Cartmell Shepherd)

So let's bust some myths!

1. I`m a common law wife/husband – I have rights

This is the biggest myth of all: there`s no such thing as a common law wife or husband. Cohabiting partners do not have the same legal rights as married partners and provisions on separation are much less favourable for the financially vulnerable partner unless they've taken proactive steps to protect their position in advance.

2. We’ve been together for 40 years so I'm entitled to half their pension

Again, this is not true. There's no right to share in your ex's pension if you separate and if you stay in a cohabiting relationship. You will only benefit from their pension if they agree to share it with you informally as part of your financial arrangements. If you`ve stayed at home for whatever reason, you might find yourself without a pension pot for your later years.

3. I`m entitled to a share in the family home

Unless you are on any joint mortgage or have a legal/beneficial interest in the home, you have no automatic right to the money in the property or even any automatic right to stay there. There are claims you can make based on your joint intentions or contributions but these are costly and difficult to establish.

4. I gave up work to look after the kids so I'm entitled to maintenance for me and for them

It doesn't matter if you have given up work to raise children or support your partner in their career - there is no obligation for your ex to financially support you once you have separated. Sometimes partners may, in a cohabitation agreement, agree that financial support will be provided if they separate, however these agreements are not legally binding.

Child maintenance is different – parents are able to apply to the Child Maintenance Service for an assessment if they can't agree child maintenance voluntarily and which will provide that one parent pays the other a calculated level of maintenance for any children and which can be enforced if the other parent doesn't pay.

Parents can also apply for lump sums of money for the children or to live in the family home with the children until they are 18.

5. If my partner dies, I`ll inherit their estate

Sadly there`s no automatic right to inherit your ex`s (or current) partner`s estate on death unless you`ve both taken steps to ensure that your wishes are properly dealt with, usually via making a will. The situation is different if you own the family home jointly as this usually automatically passes to the other person who owns it on death.

So what does the future hold and how can you protect yourself and your interests?

Like many family solicitors, I have my fingers crossed that the current Cohabitation Rights Bill passes into law, although this is not guaranteed. This will likely mean that couples who have lived together for two or more years can apply for a financial settlement on separation.

Resolution (the association of family lawyers) campaigns on behalf of cohabiting couples and they estimate that 35% of cohabitees would be homeless if they separate and one in three would suffer serious financial hardship so it is crucial that you obtain legal advice either before you move in together or when things start to fall apart.

You can protect your interests in a number of ways including preparing a cohabitation agreement which can regulate matters concerning property, finances and child arrangements amongst other things.

You can also execute a Declaration of Trust which explicitly states how your property is held and how it will be dealt with in the event of separation.

I always strongly advise clients to make a will so it's clear to those in your life what you want to happen and to make sure anyone you leave behind doesn't get any unexpected surprises.

Jo Grey can be contacted at joanne.grey@cartmells.co.uk