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The Myth of the Common Law Spouse

In England and Wales, there is no such thing as a common law spouse. It is incredibly important to understand this, and if you are living with your partner but you are not married, then you need to plan accordingly.

The law for common law spouses

Lots of people assume that if they have been in a relationship with their partner for some time, and they are living together, then they are ‘common law spouses’. In fact, according to the law in England and Wales, there is no such thing as a common law spouse. It is just a myth. So where does this leave you if you are cohabiting (meaning that you live with your partner, but you are not married)? Will you partner inherit your assets after your death? Is he/she entitled to receive your pension or death in service benefits? And what happens if you break up? The answers to these questions really depend on the types of provisions you have put in place. This is because the law offers no protection to cohabiting couples. This differs to married couples, who enjoy significant legal rights.

Cohabiting couples vs married couples

For example, if you are married and one of you passes away without having made a Will, the surviving spouse will be the main beneficiary according to the intestacy rules. But if you are not married, only your blood relatives stand to receive an inheritance. Your partner could, therefore, be left with nothing.
Or if you are married and your relationship breaks down, each person is entitled to a share of each other’s assets. This ensures the financially weaker party is provided for. But if you are not married, you have no claim over your partner’s assets. So if you break up, you could find yourself without a home or any financial support.

What should you do?

This might come as a real surprise to you, and it may also seem a little outdated. After all, lots of people choose to live together without getting married, and it might seem unfair that you do not enjoy the same rights as those who are legally wed. But the fact of the matter is that common law spouses are not recognized under English and Welsh law.

In light of this, you need to carefully consider what to do. Of course, you might decide to get married after learning all this! But if that is not an option, there are certain precautions you should put in place to ensure that you and your partner are protected. These include –

1. Make a Will, or your partner will not inherit anything under the Rules of Intestacy – even if you have been together for a very long time.
2. Write a letter of wishes alongside your Will explaining why you have included/excluded certain people as beneficiaries. This can be especially useful if anyone is likely to be upset by your choices.
3. Specify who should receive your pension, life insurance policy pay-out, and death in service benefits.
4. Make a cohabitation agreement, which sets out what will happen to your assets should your relationship break down in the future. This can include whether one person provides the other with financial support.
5. Write a deed of trust if you purchase property together. This confirms what will happen to the property, and any money you invested in it, should the relationship break down.

By completing these tasks, it will help protect both you and your partner, should any unforeseen circumstances arise in the future.

Speak to a lawyer

To find out more about how you can protect your partner and your assets, please do not hesitate to contact our family law solicitors. For an informal chat or to book a consultation, call us on 0333 4564 444, or for international calls, dial +44 1992 505 406.

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