The myth of the “common law wife”

Fiona Apthorpe

Fiona Apthorpe, head of the family team at Geldards, discusses the myth of the “common law wife.”

It was reported last month that a 69 year old lady stands to lose her home after her partner of 18 years died. Why? Because they never married and he had neither divorced his ex-wife nor made a will. As a result his ex-wife will inherit his share of the property and Joy Williams, still grieving for her partner, must move out.

This will come as a surprise to many people who would assume that Miss Williams was a “common law wife” and so had rights. They are wrong, along with the other 58% of people in this country who really do think that living together gives you the same rights as married couples. It is surprising how resilient this myth is, especially when you consider that 10% of adults are cohabiting and over 40% of children are born to unmarried mothers.

And what of those whose relationship ends in acrimony? It can obviously come as a shock to find out that even though you have been together for years you aren’t entitled to a penny if you split up. That house you called home for the last two decades? If it’s in your ex’s name and there is no written agreement or binding trust (it will be their word against yours if there is nothing in writing and these cases are expensive to bring), you will be moving out sooner rather than later. What if you put money in? Well, let’s just say you need a lawyer and it could get very messy, not to mention expensive. Then if your partner dies you are not their next of kin and the family can exclude you from the funeral arrangements. If your partner never got around to divorcing that evil spouse who put them off marriage in the first place, you may find out that not only is the spouse the next of kin, but they will inherit most, if not all, of your partner’s money and will get the pension pay out. There is no maintenance for women who sacrifice their career for their man no matter how long they are together. There may be something for any children but this is for their benefit not the mother’s and won’t extend past their leaving education.

So how can you protect yourself?

Make sure any property is owned in joint names for one. You can own it in shares if that’s fairer, say if you put in different amounts of money, but if your name is not on the mortgage you’ve got a problem. Conversely if you put all the money in – don’t put it in joint names! If you split up you’ll lose half of it. I once had to explain to an elderly widow that she had just “given” half her late husband’s life savings to a chap she’d hardly been with five minutes but who had persuaded her to put the house in joint names.

Get a Cohabitation Deed drawn up by an experienced lawyer. It really is not worth cutting corners. Trust me, it will be a lot cheaper than trying to argue it out later on.

Make sure that you have wills…..both of you. Decide who owns what and always know what you are entitled to if you split up. Find out if you can nominate the other to receive your pension death benefits. If not, take out life insurance and make sure the policy is held in trust so that it goes to the survivor. Don’t put your money in a joint account unless you really trust your partner and are prepared to lose it.

Yes, I know that you love each other and this will never happen to you but just remember that 42% of marriages fail…think about what the rate must be for non-marrieds. Make sure that if you stay together it’s because you want to….not because you face financial disaster if you leave…

For more information or advice, please contact Fiona Apthorpe, Head of Geldards Family Law Team on +44 (0)133 25 4124.