Is The Common Law Spouse Set To Arrive?

The myth of the common law spouse has survived all attempts to dispel it by legal advisers and other professionals. Despite numerous government campaigns to educate the public that there is no such person, more than half of the British public still believes in this mythical creature.

Lord Lester of Herne Hill QC has now announced he will be introducing a Bill to Parliament this Autumn, introducing additional rights for co-habitees, carers and siblings who live together. Does this mean that the common law spouse is finally going to come of age? And is that really what everyone wants?

The British Social Attitudes report 2007/2008 reveals that few co-habitees take any steps to safeguard their position, with only 15% of co-habitees having a written agreement about how they own their property together and less than one in five securing their partners financial position by making a Will.

Unlike believing in Santa Claus and the Tooth Fairy, a belief in common law spouses seems to be difficult to outgrow and this lack of planning can be disastrous for couples (and their children) who separate, are ill or are going through a bereavement.

Earlier this year, the Burden sisters argued unsuccessfully that the UK Government breached their human rights. Their contention was that by not giving the sisters the same rights to pass unlimited amounts to each other free from inheritance tax as same sex couples have in a registered civil partnership, their right to a family life was breached.

This has sparked further public debate about what rights should be extended to co-habitees, whether they are living as a couple, or are siblings or the relationship is that of carer/patient.

“Lord Lester’s bill could be a huge step forward in clarifying this area of the law” confirms Tamara Richardson of the Living Together team at Foot Anstey Solicitors “At the moment co-habitees can have rights, either under specific legislation such as the Inheritance (Provision for Family and Dependants) Act 1975 or the more difficult to predict ‘equitable’ remedies which developed to give parties some kind of justice when the strict letter of the law would have otherwise brought about an unfair result.

“However, protection for co-habitees is piecemeal and the outcome of any litigation is often difficult to predict. Anything which gives parties more certainty is to be welcomed.

“This is not without some caveats. Whilst the majority of us believe that couples who co-habit should be able to acquire some legal status and legal rights, particularly where children or inheritances are involved, co-habitation is a question of fact – how do you prove that you do actually live together? How can we safeguard against the possibility of fraud here – on either side?

“The devil is always in the detail; we should be free to live together in a committed relationship outside marriage – but should we also be free to be in a relationship without creating any legal rights or obligations?

“If you know what you want, for you, your partner, your children or your family, then there is no excuse not to make the proper legal arrangements.

The Living Together team at Foot Anstey is a group of lawyers who specialise in the issues that affect people who co-habit. To find out more about the Living Together team and the services they offer call 0845 140 0025, email livingtogether@foot-ansteys.co.uk or visit www.livingtogether.biz

Published 22/07/2008. The author of this article is Tamara Richardson