Don’t be fooled by a common law spouse

Unmarried couples do not share the same legal rights as those who are wedlocked – yet 2 in 3 people who are looking to buy a house aren’t aware of the rules, Jane Charlton at law firm Shakespeare Martineau explains.

In a survey* of more than 500 people looking to buy their first or next home nearly half (47%) incorrectly believe a common law spouse exists, with a further 20% unsure of the difference in rights – meaning 67% of soon-to-be homeowners are at risk of losing out on what is rightfully theirs through a lack of knowledge.

Choosing to live together before getting married or entering into a civil partnership is pretty much the norm in today’s society. Although it can provide a financially practical option, many couples fail to recognise the lack of protection of their assets if they separate.

Regardless of what people read or hear, there is no such thing as a common law spouse. Unmarried couples who live together are merely cohabitees and do not have the same rights as married or civil partnered couples. Even if they have lived under the same roof for 50 years, the court could treat them in the same way as friends living together.

In the event of a relationship breakdown, the less well-off party is at risk as they will not be able to make a claim for either maintenance, capital or pension provision. They can only claim their share of joint property and money, but anything held in the sole name of the other party is theirs to keep unless they can prove they have a beneficial interest, but this involves a complex legal claim called a TOLATA claim.

A way to get around this is to enter into a marriage or a civil partnership, or create a cohabitation agreement.

Being unmarried or not entering into a civil partnership also means neither of you are entitled to receive each other’s assets on your respective deaths. If you want to benefit each other, you must prepare wills to state this. It might be possible in some circumstances to make a claim as a dependant under the Inheritance (Provision for Family and Dependants) Act 1975, but this involves a legal process, a court application and legal costs.

In the long-run, it will cost more to argue about it in litigation than to pay the costs of having an agreement in place. Until the law catches up with some of the modern ways of living, protecting your interests in the event of a relationship breakdown must be considered carefully.

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Written by Jane Charlton,
legal director at Shakespeare Martineau in Milton Keynes