FOOL SCHOOL
The Rights Of Common Law Wives

October 30, 2002

By Jane Mack (TMFJane)

Does the common law wife exist? In law, she doesn't, unfortunately and it appears that it's only if you're married that splitting up has its advantages.

If you're divorcing you have a right to claim some form of maintenance from your ex if you are not in a position to support yourself, and to have a share in the assets considered to be "matrimonial property". This is regardless or whether you have contributed financially to the marriage.

The unmarried woman has no such right even if she has been living with her partner for a very long time. There is no such thing as a "common-law wife" in terms of legal recognition of the relationship. Once the relationship is over, it's over and, unless you've got children or jointly owned property, you will have no reason to see him ever again. Note the caveats though: unless you've got children or jointly owned property. And let me add another one: unless you believe you've acquired a "beneficial interest"!

We'll look at the last one in a minute as it's the most complicated and you should always bear in mind that the rights that you may have can work the other way around if you're in a better financial position than he is.

Children

If you've got children together then you won't be hearing the last of him as he walks out that door. But you'll survive. In cases of dispute the court can still make orders about where the children should live and what should happen to the family home and other assets, as you can apply to the court on their behalf to establish a claim.

As outlined in our previous article on the subject the Child Support Agency will deal with maintenance for any children of the relationship. At the moment, the level of financial support is based on a very complicated formula and this was supposed to change to a simpler one in April 2002. Unfortunately, this has been delayed because of computer problems and there is still no sign of the changes being implemented. However, so you can get a rough idea of what will happen, the new formula will be based on a percentage of the absent parent's net income and the number of children you've got. It'll be 15% for one child, 20% for two and 25% for three or more though there will be minimum and maximum amounts.

So unless there are children involved, women cannot claim any kind of financial support from the departing partner.

Property

The sort of dispute that may arise when childless couples separate is usually over splitting assets such as the home. Whether you are entitled to anything depends entirely on whether these are in joint names or, if not, whether you can establish that you have acquired some entitlement to those assets.

If you have assets that are quite clearly jointly owned then these will be split accordingly. If both your names are on the deeds of the house as equal owners, for example, then you'll automatically be entitled to your half share. And if you can't decide how to do it then you can ask the court to make the decision for you.

Beneficial interest

Usually you will have no right to remain in the home if you're asked to leave by a partner who is the sole legal owner of the property. But if you can show that you have contributed directly to buying it or to improving it in some substantial way then you may be able to show that you have acquired an interest, even though legal ownership belongs entirely to him. For example, if you paid the deposit or have contributed directly towards the mortgage instalments, this would constitute a beneficial interest. You've actually "bought" a little bit of the house even though the title deeds don't say you have.

However, difficulties can arise if your partner has been paying the mortgage and you've been paying all the other household bills. It may just have been the method you were both happy with at the time but you would somehow have to prove that this arrangement was based on an understanding or agreement that you were effectively making contributions towards the purchase of the house itself by freeing up his income.

To illustrate what I mean, there's a well-known case called Burns v Burns which set a legal precedent in 1984. A woman had lived with her partner for 17 years in a house he'd bought in his sole name. They had two children but never married although she'd taken on the use of his surname. During the relationship she had spent a fair bit of money on the house and on buying furniture but she'd never contributed directly to the mortgage payments and nor could she establish the existence of an arrangement whereby she was to have a proprietary interest in it. Two children and 17 years of her life and she got nothing.

Conversely it's amazing what you may be entitled to on the basis of a promise. Last year in the more recent case of Rowe v Prance, a woman gave up her rented flat and moved onto a boat which had been bought by her chap on the basis that he was going to leave his wife and move in with her. When the relationship fell apart, the court ruled that she was entitled to a half share in the proceeds of the sale of the boat -- even though it was in his sole name -- simply because he had assured her that it was theirs to share.

It is, of course, a costly process if you have to take this type of dispute through the courts so it's always better to try and keep things amicable so you can negotiate effectively without too much help from the legal profession.

And finally, as prevention is better than cure, the more cynical among you will have realised a couple of things. If you move into your partner's house, make sure that you have a joint account for the household bills -- including the mortgage -- and that you keep the bank statements as evidence of your contributions. It goes without saying that if someone moves in to your home then make sure you do exactly the opposite -- and on no account let him anywhere near the mortgage payments!

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