The (un)-common law partner

Above: Graham Jones, of Whitehead Monckton

The 2001 census revealed some interesting facts. More than two million couples co-habit in England and Wales outside of marriage. Of that two million, nearly 750,000 couples have a dependant child or children, while the number of co-habiting couples has increased by 67 per cent since 1991.

With so many people living together outside of marriage surely such relationships are recognised in law to give the couple’s relationship legal status? Oh no they’re not!

But what about my status as a common law husband or common law wife?

This is another one of those great urban myths. Most people think that if you co-habit for a certain period of time, legal rights arise as a result of that. They do not other than in a couple of extremely limited circumstances. It does not matter how long you live together, if it is outside of marriage the length of the relationship will not generate any obligations or responsibilities towards each other should the relationship break down.

But don’t other countries recognise this?

Yes. In the Unites States, most of Australia and New Zealand they call it palimony, but at present we do not.

Do co-habiting couples have any protection then?

Financial provision can be made for children born in co-habiting relationship and there is protection from domestic violence. If a partner dies within a cohabiting relationship, the deceased partner’s estate may have to make some provision for the remaining partner if the deceased made no provision in a will. Outside of that none of the law that financially protects and provides for married couples applies.

Does that mean I am not entitled to anything?

For co-habiting couples there is no entitlement to claim any form of maintenance from your partner other than for children. Claims can be made in respect of property owned during the relationship providing you can establish some form of contribution towards the property that gives rise to an interest. The most sensible thing to do is to ensure that any property acquired during the relationship is registered in joint names with a document called a deed of trust setting out what the entitlement is in the event of the property being sold. This can be taken further by the couple entering into a co-habitation agreement which can set out contractual obligations towards each other on the breakdown of the relationship.

Surely this has got to change?

Change may well be on the way. The law commission has published a consultation

paper entitled “Co-habitation; the financial consequences of relationship breakdown”. The consultation period has recently closed and a further report is expected next year.

Under the proposals co-habiting couples would firstly have to satisfy an eligibility and then an entitlement test. Couples with children would automatically be eligible, couples without children will probably have to satisfy a period of co-habitation possibly two years.

If you are eligible you would then have to show an entitlement. To do this you would need to show that if you could not make a claim under the act your contribution towards the relationship would lead to the assets being unfairly shared on separation. It is proposed that thereafter the range of orders available to the court will be the same as those on divorce.

Will the common law partner then actually exist?

Possibly! At some time in the future legal recognition may be given to parties who live together outside of marriage, but it will not be automatic. The government does not want to be seen to be undermining the institution of marriage. The moral here is think about your relationship, when everything is rosy in the garden it is easy to ignore it but outside of marriage the rose garden has very little legal protection.

Words by Graham Jones