Common law wife

Maria59

Married persons property act applies to unmarried couples living together as well.

No it doesn't.

See here for the legal position.

If the girlfriend has paid towards the mortgage then she will have a claim on some of the equity, although as the OP's son will already have equity in it it will not be an equal share. If they agree that her contribution is towards bills and living expenses then she will, effectively, be a guest in his house and will not have a claim.

Suzy In principle I agree with you, but I would not want to live with a partner who could evict me with no capital behind me after what might be years of being together. OTOH, neither would I think it was fair to have someone move into my house and claim rights over it immediately. There are so many variables here - how long they have been together, how much of the house has been paid off and so on, that it is important that both parties understand the parameters of their arrangement, and that they both agree that they are fair.

what about if one partner dies. if they have children, there will be such high inheritance tax to pay, almost immediately, that the children's lives will be further disrupted by having to move.
if they own a property, almost anywhere in the south, it will have to be sold to pay the tax.
spouses are not subject to IHT.

As far as I know there is actually no such thing , legally speaking, as a "common law wife". If a couple , for whatever reason, don't want the legal security that marriage provides, they should most certainly see a solicitor to make sure that the futures of both parties is legally secure.

There is no such thing as a common law wife, but if she has been contributing to the bills she could have a claim I believe. He could have a rent book for her in ordetto enter any money she gives him as rent then there would be no chance of claiming.

Is there such a thing as a common-law spouse?
There is no such thing as a ‘common law spouse’. It is an urban myth that you gain legal rights by living with your partner for a certain period of time. If you are not married, following a breakdown of your relationship, you do not get the same rights as a married couple. In fact, you do not get much at all.

crazyH common law wife is and always has been a myth in Scotland. Even way back in the 50/60s solicitors were always having to explain this.

www.familylives.org.uk/advice/your-family/relationship-advice/common-law-marriage/

Common law marriage
Understanding the myth of common law marriage
Contrary to popular belief, there is no such thing as a ‘common law marriage’. In England and Wales only people who are married, whether of the same sex or not, or those in civil partnerships can rely on the laws about dividing up finances when they divorce or dissolve their marriage.

The assumption by many unmarried couples in a long standing relationship that they have acquired rights similar to those of married couples is wrong. This common misconception needs to be addressed particularly as for many years official statistics show numbers of marriages in decline as more people choose to cohabit (living together without being married).

Many people also believe that by having a child together they acquire legal rights, whether married, in a civil partnership, or not. This is also not true. Although there is scope to apply to court for financial provision when there are children, such orders are made for the benefit of the child and only couples who are married or in a civil partnership acquire legal rights and responsibilities in relation to each other.

common law
Your rights if you split up
For couples who are not married or in a civil partnership, if you split up your partner would not (except in certain types of cases) have to pay you maintenance even if you stayed at home to look after your children – but they would still have to pay child maintenance.

For couples who rented together, if you were not named on the rental agreement you will have no automatic right to stay if they walk out or ask you to leave and you would be left to apply to court for an order giving the right to occupy, the outcome of which is uncertain. If your ex partner owned your home, and there is no other agreement in place, you have no right to stay if they ask you to leave.

Similarly, if you are not married or in a civil partnership, any savings or possessions your ex acquired out of their own money will not be shared with you although lump sum orders can be made in certain circumstances in proceedings where there are children.

To protect yourself if anything happens, you could consider entering into a contract with your partner to decide how money and property should be divided if you separate. These are known as "Cohabitation Contracts" or "agreements" and can be drafted by a solicitor. Read more about cohabitation agreements.

If your partner dies
If your partner dies and you were not married or in a civil partnership, and they haven’t made a will, you have no automatic entitlement to inherit anything from them, including your family home, even if it's in their name or if you own it jointly as 'tenants in common'. You would be left to make an application to court for provision from the estate as a dependent, these applications are uncertain and costly.

You are also not entitled to any state bereavement benefit or a state pension based on a percentage of your ex’s national insurance contributions, even if you stayed at home to care for children and depended on your partner’s income.

Rights for cohabiting couples in Scotland
The issue of unmarried couples misunderstanding their rights has already created a divide in the UK as since 2006 those who cohabit in Scotland have certain protections. The Scottish Parliament took the step to update Scottish law to reflect the way families choose to live and to ensure that any rights that already existed for cohabiting couples but were restricted to opposite sex couples only should be extended to include same sex couples. The 2006 Act also provides a set of basic rights for cohabitants in Scotland whose relationship ends covering:

the sharing of household goods, bought during the time the couple lived together. This means that if you cannot agree about who owns any household goods, the law will assume that you both own it jointly and must share it or share what it is worth;
an equal share in money derived from an allowance made by one or other of the couple for household expenses and/or any property bought out of that money. It is important to understand that this does not apply to the house that the couple live in;
financial provision when, as a result of the decisions the couple made together during the relationship, one partner has been financially disadvantaged. This means, for example, if the couple decided that one partner would give up a career to look after their children, they can ask the court to look at the effect that decision had on that partner’s ability to earn money after the relationship has ended;
an assumption that both parents will continue to share the cost of childcare if they had children together; and
a right to apply to the court for an award from the estate (property) if their partner dies without leaving a will. Before this, if a cohabiting partner died without leaving a will the surviving partner was not entitled to anything from the deceased partner’s estate. Sometimes this meant that they had to move out of the house they had lived in together. The surviving partner will now be able to ask the court to consider giving them something from the estate. If the deceased partner was still married at the time of death, the spouse will still be legally entitled to a share of the estate.
This article was contributed to by Richard Busby, Family solicitor and Partner, Fisher Meredith.

When my DB was told he was dying from COPD he was advised to marry his long time partner of 30 years because she would be forced out of the family council home and become homeless. As a common law wife she did not have automatic rights to his estate.
We then witnessed the death bed marriage and he died two days later. Now because he did the right thing, his wife can stay in her council house that she has called home for 30 years and was able to come to terms with her loss in peace.

I suppose the most obvious response to the OP is that if her DS doesn't care about his partner enough to want her to share his worldly goods perhaps she shouldn't be moving in?
I understood that she might be entitled to a share in time, particularly if she is making a contribution towards living expenses? Although you can draw up a legal agreement beforehand I am not sure that it would be fully enforcable, in much the same way as a "prenup" is not in this country.

its not true that there is still only legal entitlement if the partnership is legal. If an unmarried partner has contributed to the joint wealth of the partnership, either by covering other bills so the mortgage can be paid or working in the business, paying into the mortgage and so on, if it can be proved then the partner can be entitled to a share of the joint wealth.....but no, in England, common law wife (or husband) means nothing.

cc

I suppose the most obvious response to the OP is that if her DS doesn't care about his partner enough to want her to share his worldly goods perhaps she shouldn't be moving in?
I understood that she might be entitled to a share in time, particularly if she is making a contribution towards living expenses? Although you can draw up a legal agreement beforehand I am not sure that it would be fully enforcable, in much the same way as a "prenup" is not in this country.

such legal agreements are enforeceable, as are any other legal partnership agreements eg small business. A friend of mine moved in with a bloke who had significant credit card debt (silliness but not his fault) They set up a legal agreement so that her assets couldn't be taken and if he was ever "silly" again, the house was protected.....happy ending now all sorted.

My friend and her partner were together for 27 years. They had no children, although she had a miscarriage once. Finally, after she got cancer, they married. That was a joyous occasion.

These days it’s a double edged sword, there are lots of women who are property owners and have a male ( or female) companion without getting married. It’s an uncomplicated situation, maybe they contribute financially maybe not, it’s best if formal mortgage payments are avoided if possible, a charge for “keep” would not create a tie. Many such relationships last decades quite happily but as old age approaches consideration should be given what happens when one dies.
In the UK there is very little that an unmarried or unregistered civil partner can claim, he/she could have nothing. Getting married ( hopefully not deathbed) is one way, making a will is another

My partner and I both experienced dreadful marriages and have no desire to get married again. Property and investments are protected in Trust and a Right to Reside order exists on the house. It doesn't stop us loving each other and having the utmost respect for each other..........what anyone else thinks of our relationship does not matter to us.

When my husband died I came across this during the terrible admin after death, and contacted my best friend to encourage her to go for a 'civil partnership'.

She has 'cohabited' with her boyfriend for twenty years. They have a fifteen year age gap, he will be 78 this year. She has now found out that if he dies he has made no provision for her at all, either with his pension or his will - his response was that 'she has her house'. I feel very sorry for her.

I’ve lived my partner for over 23 years we’ve had 3 children together but we are not legally married - common-law-spouse is not legal in the eyes of the law. Our house is in joint name ... but I think to have half share in everything you would need to get your wills written stating such as it’s not automatic. (England)

Brother’s best friend fell off a roof and died. Had separated from his wife 25 years before, but she wouldn’t divorce for religious reasons. Met another lady subsequently and they lived together for 20 years. When he died, wife (still legally but living with the chap she had left him for) moved in the next day and kicked his long term partner out, although her wages had paid most of the mortgage for many years. Nothing could be done, despite lawyers costing her a fortune

There's a piece on this in the Sunday Times today. A man wants to give money to help his son buy a house but is concerned that as the girlfriend is moving in, she might have some claim on it when they split up. And she might well, if she contributes to the mortgage and the bills and any maintenance. There is a rather mean-minded response to the question (all about protecting the money, nothing about the girl who might be left homeless) but I can't remember what it was.

I know of two ladies who were second wives, married to a divorced or widowed partner but when their husbands died they were left with no provision. The original children from the first marriages had insisted all inheritance was left to them. My cousin was told to move out of the house she shared with her husband for 30 years by his children in the week of his death. She knew the house was in his name only and the children were expecting it to go to them. This is just to say even married not all situations are financially secure.
There is nothing more wonderful than to be in full control and in charge of your own finances and destiny.

I think that all these comments show just what a minefield it is. It’s obvious that many people are living together without a clue as to what will happen if one of them is hit by a bus tomorrow.

I used to work for a property management company and this question came up quite frequently, the legal advice was that there is no such thing as common-law marriage in English.

Oofy

Brother’s best friend fell off a roof and died. Had separated from his wife 25 years before, but she wouldn’t divorce for religious reasons. Met another lady subsequently and they lived together for 20 years. When he died, wife (still legally but living with the chap she had left him for) moved in the next day and kicked his long term partner out, although her wages had paid most of the mortgage for many years. Nothing could be done, despite lawyers costing her a fortune

This is a particularly difficult example and probably not that common, it just shows the need for knowing what your rights are. As for divorce make sure a divorce has been completed and what any terms are, not every divorce is “clean break”.

I would advise that girl to keep all receipts and bank statements just in case and never to use cash so there's a clear record of contributions. If the relationship ends and she is homeless, at least she can take all her property with her. There's a handy guide online at teeslaw.com which I found by searching for unmarried couple break up rights. Common law spouses haven't existed since sometime in the 18th century.

GreenGran78
Exactly.
My view, cannot see it changing, if you want to spend your life with another person ' as a couple' then what is wrong making it legal. Divorce must be the easier option if either wants out, when it comes to 'entitlement', than relying on 'pot luck' as to who has this or should have that in the event of either one or the other 'unfortunately' getting hit by a bus..

I find it really sad that so many people believe they have rights when they are in a relationship but not married.
You may be able to argue in court that you have contributed to the mortgage etc. but in reality only the lawyers win in that situation.
The only protection for a woman is to be married.