What are the legal rights of a common law husband or wife? banner


What are the legal rights of a common law husband or wife?

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As a specialist London divorce solicitor, I am often asked by clients, who have either already separated or are planning to split up with their cohabitee, “what are the legal rights of a common law husband or wife?”. I am not alone in being asked that question as most top London divorce solicitors are asked about the rights of common law spouses.

The Office for National Statistics figures reveal that cohabiting families are the second largest form of family unit in the UK. They are also the fastest growing. As about 17% of the UK population are living in unmarried relationships it really is not surprising that London divorce solicitors are asked about the legal rights of a common law husband and wife. What is surprising though is how few people know that there is no such thing as a common law husband or wife. It is just a figure of speech so the short answer to the question “what are the legal rights of a common law husband or wife?” is that they do not have any rights by virtue of their “common law” relationship as that type of relationship is not recognised in UK family law.

What is worrying to top London divorce solicitors is that most people are not aware that, legally speaking, there is no such thing as a common law husband or wife. That means that cohabitees therefore have very limited legal protection in comparison to the legislation designed to protect a married husband or wife on divorce.

A campaign for a change in the law for cohabitees is being led by Resolution, the national organization of family lawyers. The best London family solicitors are keen to promote the campaign for education about the rights of unmarried partners and for new cohabitee legislation because at present many unmarried couples are living under a false sense of security believing that they have legally binding common law rights. It is often only after a couple has taken the decision to separate that an unmarried partner will take legal advice from a London divorce  solicitor and come to appreciate the legal difference between marriage and cohabitation.

As there is no legal concept of common law husband and wife and there is no single piece of legislation to protect cohabitees, it is possible for an unmarried couple to live together for decades and even to raise a family together but at the end of the cohabiting relationship for one person to receive nothing whilst the other retains all the property.

The best London divorce solicitors would say that the difference between living with someone and being married to them just cannot be overstated. That is because if a married husband or wife separated after decades together the starting point would be that they should each get 50% of the assets, potentially including any money or property held in one spouse’s sole name. The spouse might also expect to receive a share of the pension funds and potentially spousal maintenance.

Cohabitees and property rights

Top London divorce solicitors are often asked why there is such a big difference in approach to dividing the assets and property of cohabiting couples and spouses. When the court is asked to decide how the property of an unmarried couple is shared the judge has to consider strict property law rights in making his or her decision. In contrast if the same court is asked to share the assets of a divorcing couple, who have the same asset base and length of relationship as the cohabiting couple, the judge’s approach is completely different as the court has a wide discretion in a divorce scenario, after considering a number of statutory factors in matrimonial legislation, to make an order that meets both party’s needs.

So where does the current law leave the 17% of families living in the UK in cohabiting relationships? The top London divorce solicitors suspect that cohabitees will remain in ignorance of their often vulnerable financial position until the decision is taken to separate.

How can cohabitants legally protect themselves?

The best advice from top London divorce solicitors is to know where you stand legally so that you can make informed choices about whether to get married or not and, if you choose not to get married, how you decide to buy property with your unmarried partner or what career choices you make. Job options are a consideration as a cohabitee cannot claim spousal maintenance on separation if they have given up a job and come out of the employment market to look after the children.

Buying a house with an unmarried partner

If you are planning to buy a house with an unmarried partner then it pays to get legal advice on drawing up a cohabitation agreement or a declaration of trust. This type of document is necessary if you are planning to buy the house with equal or unequal contributions to the mortgage deposit and monthly instalments but it is especially important if family is giving money towards the deposit or you will not be contributing equally towards the deposit and monthly mortgage payments.

What is a cohabitation agreement?

A cohabitation agreement is a binding contract between 2 parties which can set out how the equity in the family home (after repayment of the mortgage, any other secured loans, or family loans provided to pay the deposit to purchase the house) will be divided between the couple. The equity does not have to be divided equally as one party to the relationship may have contributed more towards the mortgage or towards the house deposit.

The cohabitation agreement can be prepared in a way that caters for one party to the relationship to pay more towards house improvements, such as a new bathroom or kitchen, so the agreement does not have to be rewritten if large contributions to the equity in the house change over time.

The cohabitation agreement can also cover how other assets and property should be split on separation as well as what financial support, if any, will be paid in the event that the relationship breaks down.

Top London family solicitors recommend cohabitation agreements as they provide some certainty over how assets will be split on relationship breakdown without having to start court proceedings for a judge to determine property rights to decide how to divide the equity in the family home and other assets.

Do you need a cohabitation agreement if the family home was bought in one partner’s name?

The best London family solicitors advise any cohabiting couple to draw up a cohabitation agreement even if a family home is bought at the outset of a new relationship in one partner’s sole name or a new partner moves into a house that their partner bought some years ago.

A cohabitation agreement is important because it will state whether or not the non-owning partner will have a share in the equity in the property if the couple split up and, if so, how much. Without a clear written agreement in place, the non-owning partner could claim that there was an agreement that they would get a share in the property, and therefore under property law, they have what is known as a beneficial interest in the house. These types of property claims can be costly and time consuming to resolve so it is prudent to have a cohabitation agreement drawn up to avoid the possibility of court litigation if the relationship breaks down.

How can OTS Solicitors help?

If you are already in a cohabiting relationship, with or without children, and you are worried about your rights to the house or other property then the prudent thing to do is to get legal advice so that you know what your unmarried partner or cohabitee rights are.

With specialist family law advice, a cohabitation agreement could be drawn up so that neither you nor your partner has to rely on complicated property and trust law if you later decide to separate.

If you have already separated from your cohabitee, with legal advice, you may discover that claims can be made against a property even though your name is not on the title deeds or if house was bought in your sole name. That is because, under existing property and cohabitee law, the property claims that can be made depends on a couple’s individual and property circumstances.

For advice and help on unmarried property claims and the law on cohabiting relationships or for advice on the drawing up of a cohabitation agreement please call me on 0203 959 9123 to discuss how we can help you.   

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