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Are we Common Law Husband and Wife?

21 January, 2015

Let’s blast this myth now – a Common Law husband and wife just do not exist! However, Family Solicitors still find themselves explaining that only marriage counts when dealing with financial issues on separation.
Generally speaking, financial assets like houses, cash savings, investments and pensions are classed as joint monies even if married couples hold those assets in their individual names and individual bank accounts. However, when it comes to cohabiting couples, this is not the case. If assets are not held in joint names, the money/property/investments are owned by the person in whose name they are held. Therefore on separation, money that may have been saved together and a house that might have been lovingly maintained or improved is not shared unless it is already in joint names.
The situation may be even worse if there are children involved. As is often the case, mum stays at home more to look after the kids whilst dad works full time. On separation, a cohabiting mum and dad will be able to ensure that the children are maintained but there will be no guaranteed extra financial help for mum. However if married, a wife and mother may be able to claim financial help for both herself and the kids by way of spousal maintenance for herself and child maintenance for the children.
From experience, property is the biggest problem. If a family home is owned by only one of the cohabiting couples, on separation the law can be harsh. If an agreement cannot be reached by the separating couple, then it will be necessary to apply to the courts for an order for the house to be sold and a declaration as to how the proceeds of sale should be shared between the cohabitees. If you are not on the title deeds and there hasn’t been an agreement made on buying the house as to what should happen to the house if separation occurs, then you may have an up -hill battle to establish a financial share of the home. You may have made some contributions to paying the bills, decorating and maintaining the home. You may have given up your job to look after children or changed to part time work, using your money for furnishings etc. However if this is not easily proven with receipts or bank statements, the courts may decide that you are not entitled to a financial share in the house.
Perhaps the other issue that regularly arises is Parental Responsibility in respect of children born to cohabiting couples. Parental Responsibility are the rights associated with being a parent, things like where a child is educated, medical care/consent to medical treatment, maintaining and providing a home for a child and issues to do with contact. Mothers have automatic parental responsibility in respect of their child, whilst fathers do not. If a father is married to the mother when a child is born, the father has automatic parental responsibility. If a father is named on the child’s birth certificate and the child was born after 2003, then parental responsibility is automatic again. However if the child was born prior to 2003 and the father is not named on the birth certificate, then parental responsibility is not automatic. The father can either make an agreement with the mother for parental responsibility or if this is not possible, a court application can be made.
Finally there is also the issue of death and inheritance. For cohabitees, on death of one, there is no automatic right to inherit the other’s estate. It is vital that cohabitees make a will and keep it updated.
So in conclusion, if you and your partner are not married, do not think that you have the protection of being a ‘common law’ husband or wife, regardless of how long you have lived together and irrespective of having had children together. Although difficult subjects to discuss, Cohabitation Agreements, (a form of living together contract) and Declarations of Trust regarding the family home (a deed setting out how a house is owned and in what shares, irrespective of legal ownership) are advisable.
Think carefully about your cohabitiational situation and if marriage isn’t for you, then carefully consider other options to provide financial protection and security in the event that things go wrong.

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