THE MYTH OF THE COMMON LAW SPOUSE
The myth of the common law marriage remains as widespread as ever.
Contrary to popular belief and there is no such thing as a common-law husband or wife. Cohabitants do not have the same legal rights as married couples.
If you cohabit with somebody but do not have children together then you have no legal rights whatsoever other than – potentially – one in relation to a property you own jointly or have lived in together.
Even if you have children together your rights as a cohabitant are limited. You are limited to bringing claims on behalf of your children and the majority of people will find themselves entitled to little more than child maintenance as governed by the child maintenance service.
This means there is no legal redress for a mother who gives up a career to bring up children but who then separates from the children’s father when they are older.
It also means there is no redress for a man who gives his savings to his girlfriend to, for example, invest in her business or redevelop a property that she owns in her sole name.
A cohabitant can contribute money to their detriment, which enriches the other party, and then find themselves without any legal remedy when their relationship breaks down.
The Law Commission – a Government body which recommends necessary law reforms– published a Consultation Paper back in 2007 setting out the changes it considered needed to be made for the benefit of cohabitants. This was followed by a draft Bill. However, it seems that no Government is prepared to act on these proposals. The response initially was that we ought to wait and see how rights for cohabitants were received in Scotland. Almost a decade has passed and we are no further forward, despite the Supreme Court decision in the case of Gow v Grant in which Baroness Hale said that cohabitants in England and Wales deserve no less than cohabitants in Scotland.
The arguments against rights for cohabitants include the fact that it may discourage marriage and that cohabitation is inherently instable. This may result in more children living in a “broken home” which may then have a knock-on effect in later life. However, very few people believe that cohabitants should have equal rights to married couples and point out that, so long as there was still a two-tier system, there would still be enhanced legal rights only available to those who choose to marry.
Other people believe that it takes away choice to impose rights on cohabitants who may have made a conscious decision not to marry. It is a denial of civil liberties and completely contrary to the notion that you should be able to live as you wish. It is perceived by some as a form of ‘bedroom tax’: share your bedroom and you will be taxed for evermore.
It would, some say, be far more beneficial to improve the child maintenance rules and require non-resident parents to pay more generous child support for longer. After all, it tends only to be women (usually) who have money in the first place who are able to go to Court and actually pursue claims on behalf of their children. The women who have nothing but really need help find themselves driven to relying on local authority care and state benefits. They could not afford to go to Court even if they had rights.
What is clear, however, is that it would be incredibly beneficial for there to be some sort of PR exercise done, to educate cohabitants about the fact that the common law marriage is a myth and to ensure that people who may be living in an unequal relationship are aware of the risks that they face if their relationship were to breakdown.
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