Atterbury Payne Solicitors

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Common Law Marriage: Myths vs. Legal Realities. What You Need to Do.

So what is a common law spouse? Recent data released by the government shows a 144% increase in the number of people choosing to cohabit as partners between 1996 and 2021. Such unmarried partners often call one another ‘my common-law wife’ or ‘my common-law husband’. 

And yet even though the term appears to have a meaning in law, common or otherwise, does the term actually carry any weight in law? 

The term is cited by unmarried partners who believe the fact of their cohabiting or indeed their having had children with their common-law partner, entails they should be treated as married in the eyes of the law. 

On the death of your common-law partner, the surviving partner might believe the asset held by the deceased will pass automatically to them by virtue of their ‘common law’ status. 

This is not the case.  

It is true if the asset is held jointly between the two common-law partners but if the asset is held in the sole name of the common-law partner, then it will form part of the estate of the deceased and if there is no will in place, it will pass by the laws of intestacy. 

If a Will is in place, the estate will pass according to the provisions of the Will so putting a Will in place is vital for a ‘common law’ couple. Married couples should also have a Will in place, but the rule of intestacy makes some provisions for married spouses. 

Outside of getting married, the common law spouses might opt to put an agreement in place between them regarding what happens to their respective shares of their property when and if the relationship ends. 

More common and worth considering is putting in place a declaration of trust in respect of a property that is jointly owned.

This is an agreement between common-law partners which precisely outlines each other’s share of the home they own together and if that home is disposed of in a lifetime, precisely how the proceeds of sale should be divided. 

The status of civil partners is less popular than it was. 

For a short time, it was the only avenue for same-sex couples who wanted the state to recognise their union. Since marriage was extended by the state to same-sex couples about ten years ago, civil partnerships fell out of favour. It might be a consideration for co-habiting couples who are looking to obtain a state-sanctioned union which confers on the couple a host of benefits, not least the tax privileges which come with being married. 

Additionally, unmarried partners should review their life insurance and pension documents to be certain who will benefit following a death. The destination for these vehicles is normally set by a nomination form or similar. Upon the policyholder’s passing or when the fund is disbursed, the designated beneficiary should receive the benefits. In the case of unmarried partners, it’s important to ascertain whether your partner qualifies as your ‘common law’ spouse for these purposes.

Written by Kevin Norcross, Charted Legal Executive.

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