Living together: I owe you nothing
The term, “common law” husband or wife is often used but has no legal standing. It is a common misunderstanding that a couple will have established a “common law marriage” after living together for a period of time.
The number of cohabiting coupled families has increased significantly according to information provided by the Office for National Statistics. In 1996 there were 1.5 million cohabiting couples; and this has risen to 2.9 million in 2012.
It is a sad fact that many people still believe that living with a partner for several years entitles them to the same rights as marriage.
When Elayne Oxley sold her house she was poised to plough the proceeds into a new shared home in her partner’s name. Her solicitor delivered a warning that should have made her stop and think. To protect her interest, her right to a share in the ownership of a new house should be recorded in writing. Mr Oxley dismissed the advice, insisting that she knew her partner, Allan Hiscock well enough “not to need written legal protection”. Thirteen years on, Ms Oxley emerged from a two year legal battle with her former partner which was estimated to have run up total costs of at least £50,000. She was actually awarded 40% of the proceeds of the property following a court of appeal judgment which ensures Oxley v Hiscock a place in the law books.
Common law marriages have not existed in England since 1753. The reality, as Ms Oxley discovered, is that a cohabitee’s rights are much more limited if the shared property is in the other partner’s sole name and there is nothing in writing to prove the non-owner’s entitlement to a share. The only option is to mount expensive court proceedings with a far from certain outcome, relying on principles of 19th century trust and property Law.
Pressure is growing for reform of the law to give cohabitees more rights and more certainty. The Law Commission however recommended reforms but they have been rejected by the current government.
The law of property can be harsh on people in a cohabiting situation. The law remains potentially unfair and a Judge is constrained to apply the law as it is especially bearing in mind there is no such thing as a “common law” husband or wife. Cohabiting couples are for the first time as likely to have children as those who marry; and cohabitation is increasingly seen as an alternative for long term relationships and raising children, rather than as a “trial run” before marriage. However, many people are unaware of their rights because the law has failed to keep up with social change. Despite an increasing social acceptance for cohabitation, the fact is that cohabiting couple families continue to be less stable than married couple families. A high proportion of all family breakdowns involve young children from unmarried parents and added to this is the substantial confusion over the legal rights of cohabiting couples compared to married couples.
But where marriage is not on offer, do not imagine the law will automatically protect you if there is nothing in writing. If you wish to formalise aspects of your status with a partner you can draw up a cohabitation contract or living together agreement which outlines the rights and obligations you have towards each other. Such a contract or agreement would not necessarily be binding in any future court but it may be a useful reminder to you of your original intentions or to be used as evidence, if you split up.
Parties looking to cohabit need to think carefully about how to protect themselves and their families preferably by reaching and signing agreements about what would happen if they did split up. This could save a huge amount of cost and heartache if the worst happens.
Maguire Family Law is a specialist firm of Family Law and Divorce Law solicitors based in Wilmslow, Cheshire. We offer legal advice to parties going through a divorce including the financial issues which flow from this and children matters including child maintenance.
We can also advise on Schedule1 Children Act 1989 applications.
We advise clients in the Wilmslow area and also to the surrounding areas of Alderley Edge, Bramhall, Hale, Altrincham, Manchester and the North West. We are also able to act for clients nationally and internationally subject to the jurisdiction of England and Wales. For advice please contact James Maguire by telephone +44 (0) 1625 529456 or by email james.maguire@family-law.