The Myth of the Common Law Wife

Since 1753 there has been no such thing as a common law wife. Having rejected the idea of legislation to protect unmarried couples, the government is instead having a drive to educate the public as to their rights (or lack of them). A mother of grown up children, or a woman who has no children, will have no claims at all to maintenance or to a share in the man’s wealth (or vice versa) as of right. In theory, a man and woman could live together for 30 years, she could bear and bring up his children, but be left with no claim at all.

A non-owner may have acquired rights in the other’s property. In seeking to establish an interest in property, the court will strictly apply legal principles and will pay no regard to the personal relationship between the parties.The court will look only at what occurred when the property was purchased or when the non-owner made financial contributions towards the property. There are three ways in which a non-owner can acquire rights in a property, all subject to a strict test:

1. did the non-owner contribute to the purchase price or directly to the mortgage payments (but not by loan or gift)? If so, their interest will be presumed to be in proportion to the contributions.

2. did the couple have an express or implied “common intention” that the non-owner was to have an interest and that he/she has acted to his/her detriment on the basis of that intention. A financial contribution to the purchase price or mortgage is not required, but the presence of a financial contribution will be useful because it provides evidence of the intention.

3. did the non-owner make a mistake about his/her legal rights, and acting on that mistake did he/she spend money on the property or otherwise act to his/her detriment, and did the owner know about the other’s mistake and encourage the non-owner to act as he/she did?

And the answer? If you do not wish to marry, seek advice and enter into a cohabitation agreement. When property is purchased make sure that agreement as to its ownership is documented, and that this is reviewed if circumstances change.

For further information contact:

Nicola Fletcher
Tel +44 (0)20 7440 7140
nicola.fletcher@mishcon.com