The Myth of the Common Law Spouse

No legal myth or oft repeated “bar-room legal terminology” is so habitually repeated and has persisted for so long as the “common law” spouse.

The main premise of this myth is that cohabiting couples who have lived together for a number of years will transform into common law husbands and common law wives with all of the financial and legal rights as a married couple. This is not true.

Cohabiting couples do not have the same rights as married couples and any rights they may have will usually have been transferred to them by way of a will or equivalent.

Upon the death of a cohabiting partner, the remaining partner will have no rights to pensions, they will be unable to claim benefits and they will likely be exposed to Inheritance Tax in the event that they are bequeathed something in a will.

Recently a coalition of legal organisations and family charities has urged the government to update legislation and to dispel once and for all the “common law” myth.

The Office for National Statistics recently revealed that the number of cohabiting families in England and Wales has increased from 1.5 million in 1996 to 3.3 million in 2017. Without either legislation being changed or the word being spread that cohabiting couples cannot expect to enjoy the same rights as married couples or those in a civil partnership, this could result in potentially millions of people struggling financially because of a misapprehension as to their rights and protections.

There is evidence of an increase in couples over the age of 50 marrying or engaging in civil partnerships and also a recent increase in the amount of “deathbed” marriages taking place. The Passport Office recorded an increase in applications for licences for urgent marriages and civil partnerships, 190 of which were issued in 2018 compared to 148 in 2015.

This shows an awareness emerging and an increase in people seeking to ensure that their remaining partner is catered for in one of the only ways available at present.

Facing the death of a loved one is obviously a tragic and emotionally draining experience without also having to face the reality that you could be left without legal or financial rights and protections if you do not marry, which can only add further stress to an already fraught situation, particularly if you might not be minded to marry should this not be the case.

Surely the best resolution would be for legislative changes to be made to afford cohabiting couples the same rights as married couples in 2018 and beyond; rights which incidentally Scotland has afforded its citizens since 2006.

Claire North