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No such concept as common law spouse

By Jim Richards, Senior Associate at Winckworth Sherwood

In English law there is no such concept as common law spouse. I’ll say it again, so it’s clear. There is no such concept as common law spouse!

This means that regardless of how long you have lived with someone, if the relationship ends, you will not be passported into the position of married couples.

Your life may be identical to your friends, neighbours, in fact anyone who is married in all but the legal quality of the arrangement between you and your partner. People would not be able to tell by looking whether you were married. This may be fine while the sun shines, but if storm clouds appear, those who are married have a much larger umbrella.

The evidence is clear: cohabiting relationships have risen consistently in the last 30 years and increasingly, significant numbers of children are now being born to families who aren’t married.

The difference between financial provision in the two situations is stark.

A married family, on divorce can access a raft of financial orders. These include court orders sharing assets and meeting needs. A court can direct that property is transferred from one party to the other, regardless of the legal ownership; that pensions so that a pension in say the husband’s name is shared with the wife regardless of contributions; and maintenance paid for anything up to joint lives, that is to say until one party dies or the receiving party remarries.

While the position on divorce is open to criticism (the law is discretionary and therefore difficult to predict without each party having a clear view of the other’s circumstances), the situation in relation to unmarried families is bleak for the less well-off party.

Former partners cannot make an independent claim for maintenance against the other, nor can they claim a share of a pension, lump sum or transfer of property order. While increasingly steps are being taken to enable other benefits such as death in service or pension rights on death to be shared, the law in relation to relationship breakdown is abject.

It is high time the law is changed in this area, but there is no evidence that any government wishes to do so.

What then is the position if a cohabiting relationship breaks down? Child maintenance is dealt with in the same way, regardless of whether the parents are married or not. Unless the paying party is a high earner, it will be dealt with according to a percentage formula. This can be checked via the CMS online calculator (https://www.gov.uk/calculate-child-maintenance).

In terms of other financial orders, there is some provision to meet the needs of children, but crucially this is limited only to the duration of their childhood. A parent with care has a claim against the other parent for lump sums, which do not fall within maintenance, this could cover the need for specialist educational equipment or other non-maintenance needs which a child may have. Claims can also be made in relation to school fees.

A former partner can also make a claim for the housing needs of the child to be met, and to furnish a property and to some extent meet the running costs of the property. This will not result in an outright transfer of property permanently but instead a “loan” for the use of the property until the child reaches adulthood. A recent case made it clear that there is no ability to make this provision on a permanent basis for children who have reached the age of 18 or above, other than in exceptional cases.

If there is a dispute about the ownership of the family home, that can be resolved under the Trust of Land Legislation. If, for example, parties agreed that a property is to be jointly owned, and then both contribute to it a claim may arise, even if it remains in the sole name of one party.

These laws are underused: even though significant numbers of families now live in cohabiting relationships, the number of cases before the courts, is anecdotally low. This may be due simply to a lack of understanding or knowledge in relation to the potential claims which a party can bring.

However, if you have lived with a partner and your relationship has ended, it is always worth taking legal advice in order to determine the extent to which you may have a viable claim in relation to your children’s future wellbeing. While in no way comparable to the provisions which married couples can claim on divorce, this is likely to be better than the arrangements which ignorance will produce.

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