Sarah walks into my office for the first time as she wants to some advice about her separation from her long term partner John.
She tells me she and John are not married – but it’s ok, they are common law husband and wife. My heart sinks.
She tells me the family home is registered in John’s sole name and he has several thousand pounds of savings – but it’s ok, they are common law husband and wife – my heart sinks further.
She tells me she doesn’t have a pension but John has a good one – but it’s ok, they are common law husband and wife – my heart sinks a bit further.
She then tells me she hasn’t worked for 10 years, since her first child was born – but its ok, they are common law husband and wife – my heart sinks to my toes.
Nobody likes giving bad news, but I need to tell Sarah how vulnerable she is. Poor Sarah has spent the last few years blissfully ignorant of her rights and entitlements within the relationship.
Quite simply, there is no such thing, in this country, as “common law” marriage.
Some people think marriage is just a piece of paper and it doesn’t change anything.
It may not change how Sarah and John feel about each other, but it makes a huge difference to how their financial situation is dealt with, if their relationship breaks down. In a marriage the Matrimonial Causes Act governs the financial aspects of a separation. Where a couple are unmarried the law is very different.
If Sarah and John had been married it would not have mattered that the house was registered in John’s sole name. It would probably be considered an asset available for division. The priority would be to meet the parties and especially the children’s needs. It is even possible for the house to be transferred to Sarah.
If Sarah and John had been married, Sarah may have received a share of John’s pension.
If Sarah and John had been married, Sarah would be entitled to child maintenance and possibly also maintenance for herself.
If Sarah and John had been married, their savings and investments would be taken into account.
But our Sarah is not married, so I have to tell her lots of bad news.
Firstly, the only maintenance she can ever get from John is child maintenance. She is probably going to have to go back to work; it doesn’t matter that she and John agreed she would be a stay at home mum.
As for the house, it matters very much that it is registered in John’s sole name. If there were no children, unless Sarah could prove she and John intended for her to have an interest in the property (an expensive uphill struggle) she walks away with nothing.
Where there are children there is a chance that Sarah could have use of the house until the youngest child finishes their education, and even perhaps some lump sums might be ordered for specific needs of the child. But when the child is adult, the house would probably revert back to John. In the long term she gets nothing.
If the house had been registered in joint names, ultimately she would only retain her share.
As for John’s savings – he is most likely to keep them.
So is there anything Sarah could have done to avoid the current situation?
Entering into a cohabitation agreement at the outset of a relationship can help to an extent. In particular, it can set out what would happen with the house in the event of a separation.
However, a cohabitation agreement could not have made provision for John to pay spousal maintenance or for his pension to be shared, this can only happen on the breakdown of a marriage.
The simple fact remains that it is only within a marriage or by remaining financially independent that Sarah could have avoided her current situation.
Common law marriage is a myth that needs to be exposed so more women avoid Sarah’s situation. Please spread the word.
If you have any legal questions arising from the breakdown of a relationship, please do not hesitate to contact our family team