The myth of common law husband and wife



The myth of common law husband and wife

Cohabiting couples are the fastest growing family group in the UK with over 3 million couples and this is set to increase. Yet the law simply has not kept pace with the changing social environment.

As a family lawyer I am regularly approached by people who have lived together for many years, often with children and believe that they have common law rights. The truth is that there is little protection for unmarried couples. A woman who has lived with a man and perhaps even had children can find that on separation she has nothing, and the man is able to walk away free of responsibilities apart from child maintenance.  It is extremely difficult to claim any share of a family home without some legal ownership of it.

Whereas for married couples, the law protects them and allows each to apply for a share of the marital assets, spousal maintenance where appropriate, and potentially a share of the other’s pension provision, the same cannot be said of unmarried couples and many simply do not realise this. For a wife who gives up work to raise a family and support the household allowing the husband to continue to build his career, the law recognises that contribution but an unmarried woman in the same situation is left only with what she personally owns.

Unsatisfactory? Highly. Of more concern is the fact that so many people in this situation are in ignorance of their lack of rights and consequential vulnerability.

Consider the situation where a married man dies intestate. However his wife still benefits from his estate. But consider a cohabiting couple in the same situation. He dies, and unless he has a will providing for the other partner, she gets nothing.

What can you do to prevent this unfairness?

At the outset of a relationship it is recommended that the couple enter into a cohabitation agreement also known as a living together agreement. This can set out what should happen in the event of a breakdown of a relationship as well as detailing arrangements for day to day expenditure if wished. If buying a property, then you need to take legal advice on the best way to own that property, and that may involve entering into a declaration of trust, which shows how the property should be divided on sale. This can provide for unequal contributions. If you are already living together and don’t have an agreement it is not too late. You can still enter into an agreement, and so provide yourselves with peace of mind in the event of a future separation. It may seem unromantic, but set against the invidious position you could find yourself in without one, then it is worth it.

Likewise, consider having wills drawn up. That way you can plan to protect the survivor in the event of the first death. It is a simple and cost effective way to again gain peace of mind.

In the meantime, Resolution, an association of family lawyers who believe in a constructive and non confrontational way to resolve family matters are campaigning for a change in the law regarding cohabitants. They are holding a Cohabitation Awareness week from 27th November to 1 December. The Law Commission recommended affording rights to cohabiting couples in 2007 and yet 10 years later, nothing has changed.  Resolution is calling for the Government to review those changes but until that happens cohabitants beware and take steps to protect you and your family!

For more information or a consultation tailored to your individual circumstances, contact Janice Leyland on 01905 730450 or email

Janice is a member of Resolution.

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