Common Law Spouse – Fact Or Fiction?

Very often people come to see us who are neither married nor in a civil partnership and assert that they are common law spouses/partners because they have lived with their partner for more than two years and as a result believe that they have the same rights as a married couple/civil partners. They are shocked when told that this commonly held belief is untrue.

It appears that articles highlighting this which appear in the press on a fairly regular basis are not ‘cutting through’ and not helping people to realise the truth of their situation. The reality is that there is no such thing as a common law spouse or partner.

You can have lived with someone for 50 years or even longer, but if you are not married or haven’t registered a civil partnership with them you don’t have any rights just on the basis that you live with them. You won’t inherit on their death unless you’re specifically named in their Will, you have no financial interest in their house unless you are named on the title deeds or you are able to satisfy certain, very limited, legal criteria to establish what is known as a beneficial interest in the property and you are not entitled to any asset that is held in their sole name.

The good news is that you are not automatically liable for their debts, so no one’s going to be able to chase you if your partner fails to pay his or her credit card bill unless you are a party to the credit agreement.

Our experience is that many people are shocked to be told this, particularly if they are the economically poorer person in the relationship. The reality of the legal position is that marriage/civil partnership is a contract with both benefits and liabilities; you literally do take the rough with the smooth, for richer, for poorer, for better or for worse. People who get married/register a civil partnership do so consciously and by agreement. They are a partnership and share the fruits of their relationship.

If you are neither married nor have registered a civil partnership, you have chosen not to enter into a contract with each other, so in law, it follows that you don’t have the same benefits and rights as those who have.

What are the legal advantages and disadvantages of marrying someone?

The advantage of not marrying someone or registering a civil partnership with them is that you protect your assets – you’ll be far better protected than by any prenuptial agreement.

The disadvantages come when you want your partner to be financially secure after your death, if you don’t have a Will they won’t inherit a penny of your estate. If you have a pension and you’re not married/in a civil partnership, your pension dies with you (unless your pension administrators allow you to nominate a non-spouse to receive “spousal/dependant’s” benefits).

There are also tax implications for the transfer of properties and assets between unmarried couples that would be exempt if the parties were either married to one another or in a civil partnership. If you aren’t married or in a registered civil partnership, you do need to arrange your affairs carefully if you want your partner to benefit from your assets – good legal advice from the start will save a lot of stress, worry, and expense later on.