The common law wife myth – true or false?

25 Mar 2019

Table of Contents

Although many people may consider themselves as a ‘common law wife’ if not married to their partner, in reality, and from the viewpoint of the courts in England, there is no such thing as a common law wife.

Unlike married couples, for whom there are detailed rules to follow when seeking divorce or separation, the rules relating to cohabitees (couples who live together but have not formalised their relationship by getting married) when they separate are far from clear.

Issues concerning a cohabiting couple upon separating include those relating to children, where and with whom they will live, financial provisions for the children, and finances and assets between the individuals.

Points to consider:

  1. When a child is born to an unmarried couple, the rights and responsibilities automatically belong only to the mother. The father will only automatically be presumed to have such parental rights and responsibilities if he has been named on the child’s birth certificate.
  2. The law relating to a cohabiting couple’s finances and property assets is very different from the rules relating to the finances of a married couple. In general, the Courts will try and clarify who owns what property or whether either or both parties have contributed to the ownership of an item of property so that they are deemed to have a “beneficial interest” in the property. Unlike when married couples divorce, cohabitees are not entitled to pay or receive maintenance to each other except for the benefit of children.
  3. In many cases, when a cohabiting couple separates, an application to the Child Support Agency (CSA) is made to ensure that both parents continue supporting children. In some cases where for example, the parent who is not living with a child has a particularly high salary, the Court may make an additional child maintenance award over and above the amount the CSA has awarded. The court will also consider whether or not it will benefit the child to award a lump sum payment and whether funds should be made available to provide adequate housing for the child.

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