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Is there such a thing as a common law Husband or Wife?

I am often asked “how long do I need to live with someone before I become a common law husband or Wife?”. Some clients are insistent that as they have lived together for 2, 5 or 10 years, or some other length of time, that they are already a common law spouse.

In fact, in English law there is no legal concept of a common law husband or wife. There is simply no such thing. Nevertheless, the myth that it exists continues. This is perhaps not surprising as I was recently asked by a major financial institution to complete an online form which asked for my marital status. The form provided a drop-down box which included as an option “common law spouse”.

The question is does it matter that people think there is such a thing?  I have to say that it does. With the label of “common law spouse” comes the misconception that those couples have rights akin to a married couple. However, this is not the case. The label often means that couples do not know their rights and they may not know how to protect their loved one.

It is estimated that there are more than 3 million couples in the UK choosing to cohabit, rather than marry or enter a civil partnership, even if only half of those couples believe they have, or will obtain, the status of common law spouse that is a lot of people who could falsely believe they have rights that they do not have.

To be absolutely clear, there is no concept in England and Wales of the ‘common law husband and wife’, irrespective of whether you have children together or how long you have lived together.

If you live together, rather than marrying or entering a civil partnership, you have:

  • No automatic entitlement to inherit your partner’s estate, even if you have children together, unless there is a Will in place which makes provision for you.
  • No tax reliefs and exemptions that spouses and civil partners enjoy, including pensions.
  • No right to make an application for a financial remedy claim under Matrimonial legislation. This does not mean a cohabiting couple have absolutely no financial claims but they are more limited and you would need to seek advice to see what, if any rights, might apply to you.

If you are cohabiting, it is important that you consider your position carefully. You may for instance wish to:

  1. Make a Will;
  2. Speak with your pension trustees and make a nomination for who should receive any death benefits or other benefits on death, if possible;
  3. Consider entering into a cohabitation agreement to ensure you both understand your obligations towards each other;
  4. Consider an express declaration of trust to confirm how a property is owned and each parties’ respective shares.

If you require any further information about this issue please do not hesitate to contact our expert, Carol Chrisfield at [email protected]