The myth of the common law spouse

Many clients who seek our advice following a separation believe that living together has a legal status, in much the same way as marriage.

It often comes as a shock to them when it is explained that the idea of having a common law spouse is simply a myth, especially if they have children or have lived together for many years.

Although cohabitees do not have a legal status, this does not mean that there is no legal protection offered to them, although the law in this area is less straightforward than for married couples.

Where joint assets are concerned, cohabiting partners will be entitled to receive their share of joint property.

It becomes more complicated when the cohabiting partners have lived together in a property that only one of the partners owns. In these circumstances, it may be possible for the non-owner to claim a financial interest in the property, but, only if it can be shown it was a common intention for them both to have such an interest, or if the non-owner contributed financially in any way.

A cohabiting couple with children may also be able to bring financial claims for the benefit of their children. For example, the parent with care of the children could seek a transfer of the property to them in order to accommodate the children or payment of a lump sum to fund school fees.

However, these claims can only be brought to benefit the children and are limited as a result.

If there is a dispute between the separating couple, and this cannot be resolved by negotiation, it would be necessary for court proceedings to be issued.

These proceedings can be lengthy and expensive. It is for this reason that we advise all cohabitees to have a Living Together Agreement prepared which sets out precisely how they hold their property and other assets, and reduces the risk of expensive litigation if the couple separate.

We advise seeking legal advice from a specialist family lawyer, ideally before moving in together.

If you would like to discuss this or any other family law matter, please contact Janine Hutson on 01772 258321, or at janine.hutson@harrison-drury.com