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The Myth of the Common Law Spouse

Author: Sarah Gillen

You might be surprised to learn that since 2005 cohabitation has increased by approximately 33% compared to an approximate 2% increase in marriage. Some of the reasons for this could be that people are giving higher priority to achieving financial independence, getting a foot on the property ladder or having children over marriage. In addition, there no longer appears to be any stigma attached to cohabitation or starting a family outside of wedlock. Even Prince William and Kate Middleton cohabited prior to marrying which would have been unheard of a generation before.

With limited funds and ever reducing social pressure on couples to get married many may no longer see the point. After all there isn’t any real difference between being a spouse or a common in law spouse is there? Well actually there is. It is true that having a marriage certificate will not make the love between a couple any stronger but it does make a difference, a big difference if things go wrong because there is no such thing as a common law spouse. Legally the term means nothing. You could cohabit with your partner for 20 years and if the relationship were to end or your partner was to die, you would be treated no differently than if you were simply housemates. Even if you had children together, your partner or their estate would have responsibility towards them but not to you. Therefore you could end up with virtually nothing, no spousal maintenance, no pension share, no share in the family home, NOTHING. That can be a massive blow, especially if you sacrificed your career to raise the children and/or were contributing towards the household bills but the house, mortgage and other major assets were all in your partner’s name, as you would have no claim on any of those.

As cohabitation is not recognised by law it is simply not possible to achieve the same sort of outcome as in a divorce, and to try to salvage something is an expensive and difficult exercise and it is very difficult to predict the outcome.

There has been a great deal of talk over the years about introducing laws to recognise cohabitation, but so far they remain non-existent.

This article is not a campaign for marriage, but simply a plea for people to better understand their own circumstances. If marriage is not on the cards, for whatever reason, then a Living Together Agreement should be.

A Living Together Agreement is a contractual document which sets out what should happen if the cohabitees relationship were to end. They can set out their own terms which can be as simple or as complicated as they wish. For example, there could be a simple 50/50 division of all assets or the division could change depending on the length of the relationship, the existence of any children and each party’s contribution, financial or otherwise. Whilst it is not particularly romantic Living Together Agreements should be viewed in the same way as buying insurance – it’s protection against unforeseen events. It protects both parties and allows them to decide what is fair at a time when there is no hostility. Hopefully it will never be needed, but if it is, both parties will be glad they have it.

For further information about Living Together Agreements please contact Sarah Gillen on 01932 588557 or s.gillen@downslaw.co.uk