The Common Law Wife: How Long Does It Take To Become One?

Everyone seems to have heard of the phrase ‘Common Law Wife’. Having listened to a recent radio phone-in however, it quickly became clear to me that not many understood what the words meant. Members of the public, when asked on the street how long a couple had to live together before the woman could call herself a ‘common law wife’, gave answers ranging from 1 year, to 5 years and even 20 years. Worryingly, very few of those asked understood that there was no correct number of years as indeed there is no such thing in English and Welsh law as the ‘common law wife’.

Briefly, if you are living with someone (co-habiting) and you are not married, then your rights at law are far more restricted. Very often, these differences in legal rights do not become apparent until things go wrong and the parties decide to split up. If parties are married and go through divorce proceedings, then the court has power to make very wide-ranging orders, which can include re-distributing both property and finances.

However, nowhere are the legal rights starker between the married and the unmarried couple than when one of parties dies without making a Will that looks after the needs of the surviving party. Under these circumstances, if the parties are married, then the surviving wife or husband will receive all or at least some of the estate. If however the parties have never married, then the position is very different, where the surviving party could end up with nothing if no Will has been made.

The passing of the Children Act 1987 was supposed to have extinguished the differences in rights and obligations of the married and the unmarried parent. In fairness, this has broadly happened. However, if an unmarried couple split, then the unmarried father of the children will still sometimes have to apply to the court for what is called a Parental Responsibility Order before he can bring various proceedings before the court regarding his children.

Following the ruling in the Supreme Court earlier this Autumn, the government is now moving ahead with legislation to make ‘legal’ civil partnerships for cohabiting heterosexual couples (since 2005 this option has only been available for same sex couples). This recent ruling also now means that effectively it will now only be the unmarried couple that does not have the benefit of automatic legal protection.

Many couples are more than happy to remain unmarried and have no wish to ever get married or even enter into a civil partnership as and when that becomes available. The good news is that by taking proper legal advice now, the position of the unmarried partners can be protected at law. The actions that should at least be considered include making a Will, entering into a Co-habitation Agreement and considering creating a Deed of Trust to set out how any joint property is to be held. All of these actions will provide some certainty and security for both parties.

Unlike the participants on the radio phone-in, don’t ever be fooled by anyone who says that if unmarried you have the protection of being a common law wife. Or indeed husband. There is no such thing.

For more information on how to best to protect yourself and your family, give my colleague Viv Savidis a call on 01761 414646 to arrange a free appointment for you to come and discuss your case with us.