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The Myth of the 'Common-Law Spouse'

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Legal rights are conferred upon a person when they marry or enter into a civil partnership.

These rights include:

  • to inherit automatically if their spouse/civil partner dies intestate (without a will)
  • to a degree of financial support if the marriage/civil partnership is dissolved

Unfortunately, the myth persists that rights to inherit or to financial support are also acquired by cohabiting with a partner, but there is currently no law that specifically protects cohabiting couples, even where they have had a child together.

This means that property (rather than family) law will govern the division of assets upon the breakdown of a relationship. The result is that a court doesn’t have a discretion as to how the equity in a property will be apportioned. So, if the parties can’t agree, the court will decide who is entitled to what, based not on what might be ‘fair’ or ‘reasonable’, but on what the court finds the parties agreed earlier, often at the start of a relationship when its end wasn’t contemplated. 

The lack of automatic protection for cohabitees on intestacy can leave someone facing the loss of their home, and a lack of financial security, at a time that is already incredibly distressing.

Both of these issues mean that before a couple starts to cohabit (either through one partner moving in with the other, or buying a property together), it is best to have a frank discussion as to how both parties’ interests are to be protected, and for wills to be made.  

Giving these scenarios advance consideration can help avoid unnecessary anguish and expense, especially if any agreement reached is documented in some way.

If you are a cohabitee concerned about your legal position with regards to property or on intestacy, call Laura Anderson at Johnson Astills at our Leicester Office on 0116 255 4855, or our Loughborough Office on 01509 610 312.