Author: Teresa Cullen
Whilst we all know that the bearded chap in the red suit really does exist, it is the season when other myths come to the forefront. Parents can spend endless amounts of time carefully positioning the “elf on a shelf” or Merindor ensuring that there is an endless array of innovative poses for the young elf to adopt every morning. Carrots are meticulously washed and left out to feed Santa’s reindeer and; children are told to listen for the sleigh bells; and parents magically acquire Santa’s mobile number to ensure easy reporting of evidence for the naughty or nice list.
On a more serious note, some myths can be damaging. Resolution, the body which seeks to promote family law in the UK, ran an entire campaign at the end of November, “Cohabitation Awareness Week”, seeking to have various changes made in the law, in particular with regard to the legal rights and status of cohabiting couples.
Myths abound about the rights of a “common law wife” (or “common law husband”).
There are approximately 7 million people in the UK and over £400,000 in London alone living in a cohabiting relationship (i.e. non-married, and not part of a civil partnership). This is the fastest growing family unit in the country, having doubled in number in the past 20 years.
Many couples mistakenly believe that they acquire “common law” rights after living with their partner either as soon as they move in, or certainly after a fixed period of time has elapsed, or indeed once children arrive.
The sad reality is that unmarried couples have very limited legal rights in the event the relationship breaks down. There is no automatic right for the common law wife to receive financial provision for herself, nor is she automatically entitled to a share of the family home. Whilst children’s rights for financial protection are maintained, the contrast between the rights of a wife as opposed to a common law wife are vast.
We have been urging couples about to cohabit to consider entering into a cohabitation agreement, which sets out the way in which the parties will divide their assets, and provide (or not provide) financial support in the event of a split. We are also advising such couples to consider life insurance, in case the worst happens. Unlike a wife, a common law wife has no automatic rights under the law of intestacy which deals with estates where the deceased dies without having left a valid will. There are of course also tax consequences in leaving part of an estate to a cohabitant/common law wife (they would not qualify for the spouse exemption from Inheritance Tax).
Whilst there are arguments on both sides as to whether the Government should intervene to bring in statutory protection for the mythical common law wife, with some arguing that couples choose to cohabit, making a conscious decision not to marry and to adopt the rights and responsibility that go with marriage, the main issue is that there needs to be a greater understanding of the myth that surrounds the (lack of) legal status of a common law wife.
In between chopping the carrots for the reindeer, positioning the elf on the shelf and leaving out the mince pies for Santa, do please consider the steps needed to protect a cohabiting partner and help to spread the word so that common law wives can rightly take their place beside the Unicorn, the Tooth Fairy and the Easter Bunny.
Teresa Cullen, Partner, Fladgate LLP (firstname.lastname@example.org)