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What is a common-law spouse?

There seems to be a lot of confusion and misconceptions surrounding the idea of ‘common-law spouses’. So we asked Rebecca Massam to shed some light on the subject.

What does common law mean?

When two people have been living together for some time, there is a common misconception that they become “common-law spouses”. Many people believe they automatically acquire the same legal status as a married couple. This is a frequently used term, but it has no legal recognition; in short, there is no such thing.

There are many differences that come up when an unmarried couple decide to separate:

Divorce

Unmarried couples do not need to formally dissolve their relationship as married couples do.

Finances

Unlike when married couples separate, there is currently no legislation that specifically provides for the division of assets when unmarried, co-habiting couples separate.

The lack of legislation means unmarried couples cannot make a claim on property held in either party’s sole name. Instead, the law of contract applies. Therefore documenting the way unmarried partners legally hold the property and the specific contributions that each has made towards it is essential. If a dispute arises, the parties will need evidence of their discussions around their ownership intentions.

A further difference is that unmarried couples have no duty to provide for each other financially into the future, unlike married couples.

Children

A married father is automatically assumed to be the child’s father at the time of birth and will automatically have Parental Responsibility (PR). A person who holds PR has a say in significant decisions about the child’s upbringing, such as what name the child shall be known by, education, travel and health issues. Those without PR do not.

Unmarried fathers are not automatically assumed to be the child’s father and will not automatically have PR for them. However, there are several ways that the father can acquire PR, either with or without the mother’s agreement.

What married and unmarried parents do have in common is a duty to maintain their children financially.

Upon Death

Unless there is a Will specifically leaving an unmarried partner’s estate to their surviving partner, it will not necessarily automatically pass to them, as it would for a married couple. Unmarried couples must make wills if they wish to ensure that the other receives the benefit of their estate upon death. Furthermore, a property that passes between unmarried partners may not be exempt from Inheritance Tax, as a married couple would be.

For a confidential discussion, please contact our family law team on 01732 747900 or email [email protected].

The contents of this article are for general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act based on the information included and should take appropriate professional advice upon their own particular circumstances.

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