The myth of the common law wife

You’ve been together years, had children together, bought a house, lived like man and wife – you just never actually got married.

And now you are splitting up. You’re protected as a ‘common law wife’ aren’t you? No.

In law, there is no such thing as a ‘common law wife’. In England and Wales only those who are married (or in Civil Partnerships) can rely on the laws relating to financial division of matrimonial assets.

These issues very often confuse the public and serve to preserve the myth of a common law marriage. If you are not married, it is important that you are aware of your position.

The assumption by many unmarried couples in a long standing relationship that they have acquired rights akin to married couples is manifestly wrong.

Despite various consultations and pledges, parliament has overlooked the issue. Judges have tried their best to tackle it but they cannot make up whole new branches of the law, only tinker around the edges.

As long ago as 1984, in the Court of Appeal case of Burns v. Burns, the unfortunate position of an unmarried partner was laid bare – in summary after 19 years of homemaking and cohabitation, in the absence of direct financial contributions, Ms Burns was held not to have acquired any interest in the family home. It is a decision which still holds good today.

So what happens when the relationship ends?

In England and Wales, if you are not married, are not named on the title to the former family home, and do not have dependent children at the time of separation (an entirely separate property regime under Schedule 1 to the Children Act 1989 would apply if there were children) then House of Lords (now restyled as the Supreme Court) case law has made it abundantly clear that the starting position in determining the financial interest in a property (i.e. the former family home) is to look at how the legal title to the property is held.

If the title is held jointly without any contrary indication of specific division, the starting position is a position of equal shares. But this only the starting position.

The truth is that many couples do not openly discuss property ownership and place trust (sometimes misguided) in one another. Not doing so stores up trouble for later.

If the property is registered in the name of one party, the ‘non-owning’ party is able to seek to establish that they have a beneficial interest (i.e. a financial interest in the equity in the property as opposed to the legal title) in accordance with general property law principles.

The burden of proof will be the party seeking to establish that the parties intended the beneficial interest to be held differently to the legal title. It is not an easy burden to shift.

It is quite important to point out that a common intention must be an intention of both parties. If one party is held to have intended differently, then that would not affect how the beneficial interest is held.

If there have been no written documents and no discussions, it is still open to the court to either ‘infer’ or ‘impute’ an intention.

An obvious example is where one party has undertaken such substantial works on the property then the court would be entitled to infer or impute that there would have been a common intention between the parties, even if the same had not been expressly discussed. Evidence of financing or providing labour in relation to substantial improvements to the property can be very important as with the added investment, the property can be significantly enhanced in value.

A case from a party not on the legal title based on financial contributions must establish that those contributions are referable to the property. It is gold dust for lawyers when presented with a case where the party not on the title has paid part of the purchase price or has regularly contributed to the capital repayments on a mortgage on the property, say with payments being made from a joint account. In this case it is usually self-evident that such contributions give rise to an interest in the equity.

Once it has been established that there was a common intention, the court will consider the whole course of dealing between the parties to see how their shares should be allocated. This will include a review of arrangements made to meet the outgoings on the property including mortgage, council tax, utilities, repairs, insurance and other such expenses amongst other things.

The court cannot impose its own view of what is fair and override the intention of the parties as is evidenced by their conduct.

The current system can operate very unfairly to unsuspecting partners and there is a pressing need for reform to at least bring the law up to the higher standard that applies in Scotland.

About the Author
Richard Busby is a specialist divorce solicitor at Fisher Meredith LLP.

Fisher Meredith offers a wide range of consumer legal services which include; Children Law, Conveyancing, Court of Protection and Community Care Law, Criminal & Fraud, Dispute Resolution, Education, Employment, Family Law, Human Rights, Immigration, Wills & Probate.

For more information: / 020 7091 2700

1 Comment on The myth of the common law wife

  1. How interesting Richard, I was under a complete misapprehension about this whole area of law. Thank you for this enlightening article.

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