November 24, 2023

The Common Law Spouse Myth

Clare Woodhouse

CLARE WOODHOUSE

Client: “We are common law husband and wife as been together for so long”.

Lawyer: “No, I’m afraid you are not.” 

All too often we hear clients tell us that as they have been living with their partner for a few years they are considered common law husband and wife and we have to inform them that despite what the media may suggest the common law spouse does not exist. Indeed, it never existed in Jersey and has not existed in England and Wales since 1753!

So, what happens if your relationship with your partner breaks down?

Unfortunately, comparatively you have hardly any rights compared to married partners or civil partners. 

  • There is no chance of any maintenance being paid to help you get on your feet. You can still seek child maintenance but in the event that you gave up work to care for the children you share, there is no chance of seeking anything like spousal maintenance to help you whilst you get back into the workplace. 
  • If your ex owns the house and you have no agreement in place you have no automatic right to stay in the property if your ex asks you to leave and no chance of you obtaining any money back that you have contributed.
  • If you rent your home and the tenancy is in your ex’s name only, you will have no automatic right to stay if your ex asks you to leave.

How can you protect yourself?

  • If you are renting a place together, think about putting both names on the tenancy. This gives you equal rights and ensures you cannot just be kicked out. The discomfort of living together whilst going through a separation is less uncomfortable than finding yourself out on the street! 
  • If you are buying a new place together it is worth thinking about how it will be divided on separation. Our property team can talk you through this. 
  • If you are moving into a property that your partner already owns it is worth considering a cohabitation agreement setting out what will happen to your contributions in the event that you separate. Whilst not binding it may carry some weight with the Court if you entered into litigation regarding unjust enrichment (the only remedy available to parties faced with this dilemma in Jersey). 
  • Make a will. If you are concerned about what would happen in the event that you die and you want your property to go to your co-habitee you need to say so in your will. Our Wills team will be happy to guide you through this. 

No one knows what life will bring but we can help you protect yourself from some of these issues. Nina and Clare would be happy to talk you through your co-habitation plans.

Please call 875 875 to make an appointment or contact us here.

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