Back to Blog

Does The Common Law Spouse Exist?

By Head of Family Law

Common-law marriage hasn't existed in Britain since 1753, yet the belief that it does is widespread.

No one acquires rights over someone else's property simply by living with them, so it is important to consider your position before you decide to cohabit.

Below is a short guide for anybody planning to move in with their partner:

Joint Tenants or Tenants in Common?

If you own the property as joint tenants, the property is held in equal shares – one tenant cannot have a larger ownership than another. A key concept in joint tenancies is the right of survivorship. This means that if any one of the joint tenants dies the remainder of the property transfers automatically to the survivor or survivors. The transfer happens even if the joint tenant provides for something different to happen with his or her property in a will. 

If you own the property as tenants in common, the property does not have to be held in equal shares. For example, one tenant in common can own 75 per cent of the property and the other 25 per cent. There is also no right of survivorship for tenants in common and should one tenant in common die his or her share of the property passes under the terms of any will, or on the intestacy rules.

Do I Need a Deed of Trust?

A Deed of Trust (also known as a Declaration of Trust) is a legal agreement that can be used to specify how a property is held between joint owners. They can include specific information such as each party’s contributions towards the purchase price or their respective shares in the property, for example. 

Moving in With a Partner Who Owns Property in Their Sole Name or Jointly With Another?

  • Consider what will happen if the relationship breaks down
  • Does the legal title need changing?
  • Will you be making financial contributions towards the property and will these constitute as an interest? If there is no financial contribution, it is unlikely that you will be able to establish any legal interest
  • Do you have children with your partner? Will it be possible to bring an application for the benefit of the children upon separation, if no agreement can be reached?
  • Is there anything else about the property that you need to know? This is particularly important if the property is held in joint names with a third party, such as a former partner or spouse

Many people also ask whether there any other financial claims upon separation?  If there are children of the relationship, child maintenance will be payable by the ‘non-resident’ parent. Other than this, it is doubtful. The rules for separating cohabitees are very different to divorcing couples. Generally you will only be looking at assets held in joint names and claims are limited to those under the laws of property and trusts.

It is vital that careful thought is given to the above matters prior to cohabitation. Whilst it may be ‘unromantic’ to plan for a possible separation, more couples are acknowledging that it something of a necessary evil. It is far better to agree your respective intentions and plans from the outset, than to separate and face legal intervention and costly court proceedings.

The best way to ensure that you are protected when considering cohabitation is to:

  •  Consider the above points carefully and ensure you have frank discussions with your partner
  • Consider entering into a cohabitation agreement which can detail how the property is to be dealt with both during the relationship and upon separation
  • Prepare a will
  • It’s always best to seek legal advice

For an initial consultation please call the police family law solicitors at Slater and Gordon Lawyers on freephone 0808 175 7710 or contact us online and we’ll be happy to help. Alternatively you can contact us via your local federation.

Amanda McAlister is the head of family law at Slater and Gordon.

Comments