How to Make a Claim as a “Common Law Spouse”

In this blog, FLiP Director James Pirrie discusses how a claim may be made by a “common law spouse” .

You can’t.  We know that many people believe that there are common law spouse claims. Research in 2019 suggested that 46% of people believed that cohabiting couples form a common law marriage – treating them as if they were a married couple. So we wanted to write a blog that would give it to you straight and answer clearly the question that you may be asking yourself in that moment of panic as you see your long term relationship in difficulties.

There are claims to be made in other jurisdictions – Australia, New Zealand, Canada even across the border in Scotland. However, if you are habitually resident here in England and Wales there is no recognition for the commitments and dependency of a relationship unless it has been formalised by marriage or civil partnership.  Tragically this remains the case for people who have gone through the formality of a religious wedding but who do not have a legally recognised marriage.

What can be done?

1. It may be that there are authentic opportunities to put your relationship on a firmer footing – where despite past difficulties, you are able to find a way forward together.
2. It may even be that this new commitment could result in marriage or a civil partnership. As the law currently stands, account is taken of the cohabiting relationship period – which is how long term cohabitants are suddenly treated as if they’ve been married for say 20 years the day after their wedding.  This transformation would therefore bring with it a serious change in the level of your security.
3. Otherwise, it is only in the event of the death of your partner, then for the first time, the court is able to make provision for the financially dependent simply on the basis of their need.
4. For the majority there will be no such options, here, as the person making a claim, you will need to stop thinking in terms of dependency and need and start thinking in terms of broken promises.  It is technical law and difficult to grasp, hard to apply and – even as a professional – far from easy to predict.  But you can raise a claim against property (a home or savings or a bank account) where there has been a clear understanding that you were always intended to share in that property: that the home was your joint home or the savings were jointly yours.  It is easier to make these claims where you have made a financial contribution directly to them.
5. You can also make a claim where you have a child together with your partner.  Claims are routinely made by a person caring for a child not only for provision through the child maintenance service but also for example:-

   -for the loan of capital for housing.

   -for the payment of sums for equipping that home, providing for a car and other child necessities.

   -the court may also make orders for educational costs, the costs of disability and for general maintenance topping up CMS awards against wealthy other parents.

These claims are often referred to as a “schedule one” claim. Myself and Charlotte Bradley of Kingsley Napley have just completed co-authoring the updated guide for professionals, “Schedule 1 to the Children Act”. It is a big and technical read, to purchase the guide, see more below.

FLiP is one of the leading family law firms doing this complex work and will be happy to discuss your unique situation. Contact any of our top London divorce and family lawyers at E: hello@flip.co.uk or T: 020 7420 5000.