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What is a common law partner / wife and what are the rights?

As divorce solicitors, we are often asked whether someone could be classed as a common-law partner.

In this article, we dispel the common-law-partner myth and discuss why it’s dangerous to rely on this common misconception.

 

What is a common-law partner?

In England and Wales, there is no such thing as a common-law partner.

The common-law partner is a widely held – but mistaken – belief, that if a couple live together for a certain period of time, they somehow become common-law spouses. This false notion that cohabiting couples acquire the same legal rights as married couples, has meant that many people do not take the necessary steps to ensure that, should their relationship break down in the future, they are financially protected.

Many people wrongly assume that they have been living with their partner for so long, that they have acquired the same legal protections as their married counterparts, due to a common-law-partner status. It is important to emphasise that this is not true.

Legally, a common-law partner does not exist. As a common-law partner or cohabitee, you do not have the same legal rights as a married couple.

common-law partner

 

Does a common-law partner have rights to property?

This question is one that we hear frequently from our clients.

When a relationship breaks down, the family home is often the most contentious issue. Arguments erupt over everything from who will continue to live in the house, how the money should be divided upon the sale and even who actually owns the property.

For example, if the property is owned solely by one party, the other party may say that they are entitled to a share of the property due to the fact that they have contributed towards the mortgage.

Unlike married couples, there is no specific law in England and Wales designed to deal with separating cohabiting partners. Again, it is worth repeating that there is no common-law partner.

In the instance described above, various property law rules could come into play, none of which were designed with cohabiting partners in mind. Cohabitees do not have the same legal protections which their married counterparts benefit from.

 

Does a common-law partner have to pay spousal support?

This is another question we hear a lot when discussing the common-law partner myth. The answer is a simple no.

Spousal maintenance, or support, is only applicable for married couples who are getting/have got a divorce.

Cohabiting couples who are not married will not have the right to apply for spousal maintenance if their relationship breaks down.

 

The common-law partner: a fallacy

Court cases involving ex-couple cohabitees can not only be time-consuming, costly and complex, but the outcomes, due to the lack of laws designed for cohabiting couples, can be difficult to predict.

For some cohabiting couples, it may be advisable to enter into a cohabitation agreement. Always seek independent legal advice before entering into a contract of this kind.

 

What is a common-law wife?

There seems to be a great deal of confusion surrounding the term ‘common-law wife’. In this article, we’ll dispel the common-law-wife myth and explain why the concept of a common-law spouse is so dangerous.

 

What does common-law wife mean?

People use the term common-law wife to describe a woman who has lived with her partner for so long, that she has acquired the same/similar legal rights as someone who is married. However, this is not the case. Legally, in England and Wales, a common-law wife does not exist. No matter how long you cohabit with a partner, you will not acquire the same rights as a married couple unless you get married.

 

Is a common-law wife entitled to half?

If a married couple were to seek a divorce, the starting point for dividing their assets would be a 50:50 split. It’s not uncommon for us to be asked whether a common-law wife (someone who is not married to their partner) is entitled to an equal division of the assets, too. The simple answer is no. No matter how long a woman has been with their partner, they do not acquire common-law-wife rights similar to a married woman’s rights.

If an unmarried couple were to separate, there is no 50:50 starting point for the division of the couple’s assets. Indeed, there are no specific laws which deal with what a common-law wife is entitled to receive if the relationship breaks down. This means that various other, often complex, areas of law may be called upon, which haven’t been specifically designed for relationship-breakdown situations, yielding often unpredictable results.

 

Can a common-law wife claim the house?

When an unmarried couple reside in a house which is just in one party’s name, this can cause problems if the relationship were to break down. If the couple were married, there is a law which enables the wife to claim a share of the family home, despite the fact it is solely in the husband’s name. This law does not apply to a common-law wife. In this instance, whether the common-law wife was entitled to a share of the family home would be dealt with by other areas of law, not specifically designed for the break-up of a relationship.

If, for example, the common-law wife had contributed to the mortgage on the understanding that this would result in them obtaining a share of the house, they may be entitled to a sum of money when the house is sold.

 

Common-law wife with no Will

If there is no Will stating that the estate should be left to an unmarried partner, the estate would not necessarily automatically pass to the unmarried partner, as would be the case for a married couple.

Many people come to us after the breakdown of a relationship or the death of a partner, assuming that they will have rights as a common-law wife. This is not the case.

 

How can our expert divorce solicitors help you with the rights of common-law partners?

Our expert family law solicitors can help you with a range of legal issues relating to common-law partners, including:

 

Contact our expert divorce solicitors for advice on the position with common-law partners

For more information call our divorce solicitors on 0845 862 5001 or email mail@austinkemp.co.uk.

Our expert family law solicitors offer a nationwide service. We have client meeting office facilities available, in order to have face-to-face client meetings / conferences as and when required in:

Leeds Office: St Andrew House, The Headrow, Leeds, LS1 5JW

Wakefield Office: Market Walk, Wakefield, WF1 1QR

Halifax Office: Old Lane, Halifax, HX3 5WP

Huddersfield Office: Northumberland Street Huddersfield, HD1 1RL

Coventry Office: Warwick Road, Coventry, CV1 2DY

Canary Wharf Office: 25 Canada Square, Canary Wharf, London, E14 5LB

Please contact us for more details.

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13th December 2019

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