What is a common law spouse?

By Rebecca Massam Wed 25 Oct, 2017

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.

When a couple have been living together for a number of years and have children together, there is a common misconception that they acquire the same legal status as a married couple and become “common-law spouses”. Although this is a term that is frequently used, it has no legal recognition; in short, there is no such thing.

Unmarried couples do not need to formally dissolve their relationship like married couples do, and this is just the beginning of a number of differences that come up when an unmarried couple decide to separate:

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

This means that the law which allows a wife to claim a share of the family home which is held in the husband’s sole name, for example, simply does not apply to unmarried couples. Instead, the law of contract applies. Therefore, the way in which unmarried partners legally hold the property and the specific contributions that each has made towards it are essential. This turns on evidence of discussions that the parties have had as to their intentions for ownership of that property.

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

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) for that child. A person who holds PR has a say in a number of 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 the child. There are a number of ways however that PR can be acquired, either with or without the mother’s agreement.

What married and unmarried parents do have in common however, 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. It is essential that unmarried couples make wills if they wish to ensure that the other receives the benefit of their estate upon death. Furthermore, property which 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 family@warners.law

The contents of this article are for the purposes of 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 on the basis of the information included and should take appropriate professional advice upon their own particular circumstances

Back to news