No Such Thing as a Common Law Spouse

27 Nov 2019

Resolution’s members are family lawyers and other professionals committed to the constructive resolution of family disputes.

The annual Awareness Raising Week this year focuses on cohabitation. In the spirit of promoting this theme, the Trethowans family team are writing a series of short articles to assist couples either contemplating cohabitation or perhaps facing the breakdown of their relationship.

Yesterday we looked at couples wishing to purchase a property and how they may like to consider entering into a declaration of trust or cohabitation agreement to define their respective interests in the property. Today, we look at situations where this has not been addressed at the outset and what would happen in the event of relationship breakdown.

It is worth noting that there is no such thing as a common law spouse. This means that despite the fact that you might have been in a relationship with someone for many years and may have been living together as husband and wife during this time, it does not necessarily follow that you would have any interest in a property in which you live together. Following a separation you could find yourself in a position whereby you have no right to remain in the property and no financial security to enable you to find somewhere else to live.

If a property has been purchased in your partner’s sole name but you have been contributing on the assumption that you would have an interest in the property then you may be able to establish a beneficial interest in the property, but you would need to be able to demonstrate that:

  1. You and your partner had an agreement to share the beneficial ownership of the property, which would need to be supported by evidence, and in addition that you acted to your detriment in reliance of that agreement; or
  2. That the court should look at your conduct and infer a common intention that the beneficial ownership should be shared, based on that conduct, i.e. you may have paid the deposit towards the purchase price or made extensive repayment contributions towards the mortgage.

It is certainly not a guarantee you could establish an interest and is often an expensive and difficult argument to pursue as evidence is difficult to obtain.

If you own a property with your partner jointly, and purchased this after April 1998, it is likely that the TR1 form you completed to purchase the property will indicate your beneficial interests. Often people do not realise the relevance of this form, but it can be conclusive in determining your interests and should be considered carefully when going through the conveyancing process. This will be considered an express declaration of trust and where there is such an express declaration it is rarely possible to argue anything otherwise.

If there is no express declaration of trust and a property is owned jointly, the presumption is that the property is owned in equal shares, although in limited circumstances this presumption can be rebutted. It will be an uphill struggle for a party to produce relevant evidence to convince a court that the presumption of equal ownership should be rebutted, and even if successful in arguing an unequal interest, the court must then determine what the unequal shares are.

The best way to ensure you avoid navigating this complex area of law following a separation is to ensure that you have sensible discussions with your partner and be clear about how you own the property and in what shares, and have this accurately recorded.

What if you have children together? Tomorrow we will look at some additional considerations where there are children involved.