Apologies first: I have talked about heterosexual couples in this article. The same applies to same sex couples. I have also given an example of the male partner being the one who is the main breadwinner and the girlfriend being the stay at home mum. Clearly, that could be the other way round and of course, it could be a same sex partner that is the stay at home parent as their same sex partner goes out to work.
Disclaimer Second: I have tried to express an opinion about the fallacy of common law husband and wife. In doing so, I have touched upon a complex area of law known as Trusts. I have not gone into detail about Trusts and that means that some of the information contained in this article is not strictly accurate but one possible scenario that could arise. As per the main disclaimer at the end of this article, do not act on anything you see written in here but take independent legal advice from a qualified specialist family Solicitor. Not doing so, especially in this case of all cases, you do so at your own peril.
It never ceases to amaze me how often I hear people, old and young, rich and poor talk about their partner being their common law spouse. If anything, I seem to hear women refer to that concept more than men. I do not know why that it – but anecdotally, I would say that twice as often in my legal practice, I hear women say that they are the common law wife of a man that they have been cohabiting with for some time, rather than men referring to it. Why that is the case is not particularly relevant to this article but interesting nonetheless.
I recall a particular client who came to see me not a long time ago (and case law is littered with similar stories sadly) where a woman had been living with her partner for many a year and they had two teenage children together. She had changed her name by deed and as far as BOTH of them were concerned, they were common law husband and wife. Their families thought of them as a “married” couple as did their friends and all who knew them. They felt married.
Sadly, their relationship broke down and this is when the problems arose.
Let me state the obvious from the outset: to be married, two people, whether heterosexual or same sex, MUST go through a formal legal ceremony, ie a wedding, in a Register Office, a designated religious building (such as a Church) or more commonly nowadays, an approved other building, such as a country manor etc. Without that formal ceremony, the couple are not and never will be, married.
Many people do not worry about such “minor trivialities” – but as a Solicitor dealing with relationship breakdowns day in day out – that information is of crucial importance.
If I got a pound for each time I have had a client say that they are “married” only to find out that what they meant was that were common law husband and wife – I am sure I could retire.
The fact of the matter is that the concept of common law husband and wife has not existed in England and Wales since the 1700’s, 1763 from memory but don’t quote me on that. A few decades will not make the blindest bit of difference I bet. Let me say that again just in case you thought you misread what I just said – the concept of common law husband and wife has not existed in England and Wales since the 1700’s – yes, several hundred years ago. Quite why people still hold on to this dangerous myth of the common law spouse is beyond me.
I do not even know where this folklore starts – people just seem to know – like it is in the genes.
Back to the client that I mentioned earlier, they felt married, the believed they were married but they had not gone through a marriage ceremony. So now you and I know that in fact they were not married. You and I now know that they were not common law husband and wife as there is no such thing.
So what? Well, not untypically, the male partner (I will not call him a husband, so I will call him a boyfriend, just to drill the point home), he went to work so he was the breadwinner, so to speak. She stayed at home and looked after the kids.
He had the savings in his account – the account that he had before they met but they just kept using – because it did not seem to be a big deal. She had his passbook and even knew the online pin number and password and he did not. (Sounds like my domestic circumstances too).
Crucially, he had the home in his name as the mortgage was in his name, but they both considered it their home and the kids home.
I am now simplifying matters because there are circumstances where in such cases the female partner (I will not call her a wife, so I will call her girlfriend to remain consistent) does have an interest in property but it can be expensive to prove that the girlfriend does have rights and success can never be guaranteed.
In this case however, the client that I saw had no such rights and no way of proving that she out to have an interest in the property. Even though she had done everything to raise the kids, which in my mind and more importantly, in the courts, mind is the equivalent as going out and earning a wage and thus being a joint contributor to the outgoings on the property etc.
The net effect was that she was not his wife and thus not entitled to matrimonial relief
She was not his common law wife as there is no such thing in England and Wales
So she was just a “mere” girlfriend.
She was not entitled to any of the value of the home – not a dime.
In my mind and I am sure in most people’s mind, that was a very harsh outcome for the girlfriend, especially after a long relationship. But legally, it was the right outcome. That is what the law says and until the law changes that is how it will be. The law in these types of “common law” spouse cases are not concerned with fairness but concerned with legal (and equitable) rights. You are either entitled or you are not.
Let that be a salutary lesson, if you are the common law wife, you are no more than a mere girlfriend, and if you are the common law husband, they are no more than a mere boyfriend. The law will treat you as such. So, if you are in such a situation, fix it now – especially whilst your relationship is working – as both of you will want to be fair to each other.
In my case above mentioned, the boyfriend could have approached this matter as a gentleman and said, well I thought she was entitled, so I will give her that fair share. He didn’t. What he said was, not unsurprisingly, was that he would pay out only what she was entitled to in law. Which he now knew was NIL. He made a windfall and caused her untold misery, distress and financial hardship. She was understandably devastated.
If you are in a relationship with another person and have not formally regulated your position, then for heaven’s sake go and see a Solicitor to ensure that you are both protected or there will be more than tears later.
The comments in this article are not intended to constitute legal advice. As ever, in all the articles written, it is imperative that you take independent legal advice before acting on any of the information contained herein.
Shak Inayat
Solicitor
0207 183 2898
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