How many years you need to live together to acquire rights of a common law spouse and what are those rights? It is a question that we are still asked on far too many occasions. Often the question is put with its own, tentative answer – six months, one year, two years? Answers that have usually been supplied by friends, or the proverbial man in the pub.
The truth is that English law does not recognise a common-law spouse. There are no rights of a common law spouse!
The Law Commission, who advise the Government on proposed changes to the law, have been suggesting for many years that this position should be changed. With an increasing number of couples choosing not to marry the absence of any rights of a common-law spouse can cause real unfairness. Despite these recommendations successive Governments have declined to take any action. The subject is, no doubt, a difficult one. As the current debate on same-sex marriage clearly shows, it is one where there is much divided opinion. Politicians of all persuasions have concluded that legislation to deal with the rights of a common-law spouse is something best left for another day!
In one or two areas there have been some legislative inroads in this area. For example a surviving common-law spouse can bring a claim under the Inheritance (Provision for Family and Dependents) Act 1975 if they have been living with a deceased partner as man and wife for a period of two years or more. Domestic Violence legislation also recognises that couples may not be married.
However, in the key fields of property and succession law there is no recognition of the rights of a common-law spouse. Where an unmarried couple fallout there is no general jurisdiction of the Courts to adjust property rights to do what is fair as there is when a married couple divorce. An individual is under no obligation to provide maintenance for a former partner or ensure that they have a roof over their head, regardless of any disparity that may exist in financial circumstances.
Where a couple who were not married do not make Wills the position on the death of one of them can be even worse. This can be particularly so if they have children. The surviving partner will inherit nothing. If they qualify and wish to make a claim under the Act mentioned above they will need to issue Court proceedings against the actual beneficiaries deceased’s estate. They will have to sue their own children! If the children are under the age of 18 settlement of any claim will only be possible with the approval of a Judge.
Even where the children are over the age of 18 their relationship with the partner of a deceased parent may not be all that it might be. As we have repeatedly pointed out the one certainty that exists in situations where litigation ensues is that all of the parties will be the poorer once the costs of the Court proceedings have been met.
While it is not possible to exclude litigation in its entirety, proper documentation can go a long way to discouraging expensive Court costs. Setting out details of the ownership of jointly held property and making a proper Wills are the best evidence of the intentions of the parties themselves.
It is a sad fact of life that family disputes are occurring with increasing frequency as the complexity of our family structures grow. Taking sensible precautions at an early stage is the best way of avoiding any possible disputes getting out of hand.
To answer our own question then there are no rights of a common law spouse. The law does not recognise a common-law spouse at all. Infact, while we have used the expression common law spouse in this article for ease of reference we should not have done; the is no such thing! If partners living together wish each other to have rights they should make sure that the appropriate documents are in place so that they can reduce the scope for argument. In reality they are partners, not imaginary common law spouses.