Often, people who cohabit rather than marry, refer to themselves as “common law spouses”, generally because they live together as if they were married but without the expensive party!  The term common law spouse is also used on various data-gathering forms to describe your living arrangements.  I have always found this somewhat strange, especially when there is, in fact, no such thing as a common law spouse.  It is a complete myth.

The reality is that married couples and cohabiting couples are treated very differently in the eyes of the law in the event of separation.  Whilst the “common law spouse” myth often leaves cohabiting couples believing that they will have the same claims to their partners’ assets as they would if they were married (because they believe they are common law spouses), this is not necessarily true.  In fact, a cohabiting partner has no claim on any of their partner’s assets unless they have an interest. For example, they would have no claim on the other party’s pension (which is often one of the highest value assets a person may have).  Similarly, if the main home is owned in one party’s sole name (rather than jointly), the other cohabitee would not automatically have a claim; they would instead have to prove that they have an interest in the property (for example by way of contribution or express agreement).

Contrastingly, for the married couple, all of the assets would go into the “joint pot”, whether owned in one person’s sole name or jointly and then consideration would be given as to how those assets should be shared (whether equally or unequally depending on the circumstances).

Another aspect where cohabiting couples differ from married couples is the concept of spousal maintenance.  There has been a lot of coverage in the press of late that stay at home husbands/wives have continued to be maintained by their spouse following separation.  This is usually because it was agreed between the parties during their marriage that one spouse would stay at home (usually) with the children, whilst the other focused on their career and became the “breadwinner.”  However, for cohabiting couples in the same situation, there would be no spousal maintenance for the lower-earning party upon separation; they would simply part ways with no financial obligation to maintain the cohabitee who has stayed at home, looked after the children and supported the other in their career choices.  A cohabiting spouse has no claim on the other party’s income.  However harsh this may sound, it is a clear example of the different remedies available to cohabiting couples versus married couples.

Therefore, next time you see the term “common law spouse” – remember, there is actually no such thing and the rights that each party may have in respect of assets can be limited.  If you are a cohabitee and an asset is intended to be treated in a specific way upon separation (i.e. shared), it is important that you obtain the relevant legal advice as to how to protect your position, otherwise, you could find yourself in a messy and costly situation.

If you wish to discuss this matter or require advice on a different issue, please contact our family law experts now.  We offer a free initial consultation to all new clients.

Author: Bradie Pell, partner and head of the family department.