Financial & Legal News

Cohabitation Law – explaining the myth of the ‘Common Law’ spouse

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More and more people are choosing to live together without being married. With possible shared children, assets and business interests, how does the law view the so-called "Common Law Marriage"?

There persists a myth leading unmarried couples to believe that they are as protected in law as married couples are.  Unfortunately, the law itself does not support this belief. Couples who cohabit simply do not have the same rights and responsibilities afforded to them by the law as married couples.

This belief can lead to shock and financial devastation as was recently highlighted in a court case between Pamela Curren and her partner Brian Collins.  Pamela had been in a 30-year relationship with Brian.  They ran a successful boarding kennel & cattery company.  However, both the business and the family home were in Brian’s sole name which meant that when his relationship with Pamela ended, she was effectively left penniless.

Set out your intentions in a proper document

It is a common problem that couples fail to set out in writing what the objectives for ownership are at the beginning of a relationship. It is essential to have a written document clearly stating both party’s intentions so as to enable certainty and transparency, particularly when a relationship breaks down, often in acrimonious circumstances.

Pamela had trusted that she would be provided with a "fair share" of the assets if the relationship ever broke down. When she made a financial claim through the court, seeking a share in the home and business, a Judge ruled that Pamela had no right to share in the family home or the business, stating that he had no other option but to apply the law regardless of how unfair this may seem. The law of property can be harsh on people in a position such as Pamela.

"Common Law Spouse" - the shared business interests

If Pamela were to have succeeded in her claim, she would have had to prove that the couple originally intended for her to have a share in the property and business.  The burden of proof would rest with Pamela, whose interest was undocumented and she would have to go through the struggle of establishing that there was a joint intention for them to have an interest.

The court interprets intention based on looking at the financial conduct of both parties during the period of ownership. There would need to be an extensive examination of the financial aspects of the relationship which can prove very costly, time-consuming and, most worrying of all, is that the outcome is very uncertain.

Proving the intention can be difficult 

Purchasing a house with someone is an exciting time, but it is also a serious financial investment.  As such, the easiest, most efficient way to protect oneself legally against this old-fashioned and outdated aspect of property law,  is to record each party's intentions in a legally binding formal document at the outset such as a cohabitation agreement or a declaration of trust.

Do you think you are a "Common Law Spouse"?

These documents can be prepared by our Family Law team who will record each person's share, set out who has contributed what, and what shall happen should the asset be sold or the relationship break down, thus avoiding the uncertainty of expensive court litigation.

The Author

Tracy Crompton is a lawyer in Pearson Solicitors' Family Law department, regularly providing advice for unmarried couples living together, cohabitation laws and rights, tenants in common, common law partners & joint mortgages. 

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.

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