Common-law marriage myth could leave you homeless

This is a complete and utter myth – the law in England and Wales does not recognise any so-called 'common-law marriages'. So the couple living together in this way have no more property rights than single individuals living separately.

Many people have discovered this to their cost. Having lived with someone for years they then find after they split up or one partner dies that they have no rights to a share in the other partner's property, or even to remain in occupation of a home.

There are no property rights to a house owned by the other partner

So far as the ownership of a house or flat is concerned, if your name is not on the title register (or the deeds) then you are usually not entitled to any share in the property. You will also not be entitled to remain in occupation of a property owned solely by the other person.

Take the case of the lady who lived with a man for many years and helped him build up a successful business. She also contributed to the cost of running and maintaining the house they occupied. But the house was in the man's name alone, and her name was not on the deeds.

When they split up she tried to claim a share in the house. But although the judges had considerable sympathy for her they decided that she had no legal claim against the property, as the law stands at present.

Had the couple been married (or as a same-sex couple had entered into a civil partnership) the situation would have been very different. By registering a simple notice she could have stopped him selling the house, and would have been entitled to a share when the property was sold. But she ended up with nothing.

Partners who are legally married or in a civil partnership have substantial property rights, including the right to occupy a clearing-house, under the Family Law Act 1996 and other legislation. But this legislation does not give any rights to partners in a so-called common-law marriage.

A proposed new law could change all that

Following mounting criticism of this state of affairs Parliament has now been asked to consider a draft Act to remedy the situation. If passed by Parliament this Act will give each partner of a co-habiting couple broadly similar rights to those of a married/civil partnership couple.

The proposed law is intended to establish a framework of rights and responsibilities for cohabitants so as to provide basic protections in the event of two people ceasing to live together as a couple or on the death of one of them.

Courts could order the sale or transfer of a property

The courts would be able to make a financial settlement order. This could include ordering the sale of a property and the division of proceeds. The court could also order one person to transfer property such as a house to another.

The draft law sets out a variety of factors which the courts would have to consider before making a financial order. These include any financial or other contribution made by the applicant to the parties’ shared lives or to the welfare of members of their families during the parties’ cohabitation.

People would be able to opt out of the legislation by entering into a formal agreement. But for such an agreement to be valid each of the persons

entering into it would have to confirm they had received separate legal advice from a qualified lawyer as to the effect of the opt-out agreement and understood its effect.

The courts would also have to consider any Deed of Trust which the parties had previously entered into relating to the ownership of their property.

An application for a financial settlement could be made following the death of one cohabitant. If the deceased cohabitant has left a will leaving property to the survivor then that will be a factor for to be taken into account.

Proposed change to law of succession on death

The law on succession would also be changed so that a surviving cohabitant would be treated as a surviving spouse or civil partner if a deceased cohabitant did not leave a will. This would enable them to apply for a grant of letters of administration. They would also have the same rights in respect of the deceased's home and property as a surviving spouse or civil partner does at present.

The courts would also have the power to prevent or set aside any disposition of property made by one cohabitant with the intention of defeating the other's claim for financial relief. However the law as drafted does not appear to give a cohabitant whose name is not on the deeds any right to register a notice of their occupation rights, as is currently available to those who are married or in a civil partnership.

Proposed changes may never become law

There is still a very long way to go before this draft legislation comes into effect, and the chances are that it may never become law. At present the draft bill has just been introduced in the House of Lords. It has yet to receive any detailed debate, and even if passed by the Lords it would still have to be passed by the House of Commons before becoming law.

As the bill is not backed by the government it has little chance of becoming law at present. This will be a pity as such a law could help remedy many inequitable situations which arise when long-term partners split up or one dies without leaving a will.

Get your name on the property title – or get married

In the meantime the only advice that can be given is that if your partner owns the home and your name is not on the title register or the deeds, try to get your partner to transfer the property into your joint names as soon as possible. Unfortunately this may be easier said than done – if the partner is not willing to sign a transfer there is not much else that can be done.

The other alternative would be to get married or enter into a civil partnership. But that is something beyond the scope of solicitors to deal with!