Common law trouble and strife – Eastenders

It’s been a courtship of almost quarter of a century, but soon there will be wedding bells for everyone’s favourite Queen Vic landlord and landlady – Mick and Linda.  OK, so truth be told we actually preferred Kat and Alfie.  And Peggy and Phil.  And Sharon and Phil.  And Sharon and Grant.  And definitely Pat and Frank.  And Den and Ange…

Anyway.  “Why are they bothering to get married?” we sense you ask yourselves.  After all, they have been together for well over 20 years, have 4 children together, own a business and have a quite a unique and acquired taste in wallpaper.  They’re common law husband and wife aren’t they?

Well she can smell a legal myth from 50 paces.  Our resident soap lawyer, family law solicitor Rebecca Finnigan comments.

What does a common law spouse have in common with a unicorn, the Loch Ness monster, yetis and ‘fat cat legal aid lawyers’?  They don’t exist!

If there is one legal myth which doesn’t seem to die, it’s this one.

But it’s just a piece of paper isn’t it?  It’s an unhappy fact that there are still people out there who do not realise that despite having for all intents and purposes having lived together as though they were husband and wife, they have in fact very few rights as compared to couple who have actually been married.

A little example might highlight how stark the difference is between couples who have that ‘piece of paper’ and those who don’t.

Let’s call them Bob and Mary.  Bob and Mary have lived together in Bob’s house for 20 years.  They have 3 children together, all under the age of 18 and in full time education.  Mary gave up her job as a nurse to concentrate on raising their brood when their second child was born.  She didn’t have an income, but her caring full time for the children allowed Bob to bring in a comfortable income as the owner of a car lot (the business did very well, as he avoided buying “cut and shuts” from local business The Arches).  Bob had sufficient income to invest tidily in a pension.  The marriage is shattered when Mary find’s Bob in a compromising position with Mary’s 22-year-old niece, who is also his secretary (well, this is the east end and every east end relationship would seem to deserve its own ‘duff duff’ moment).

What happens next?  Well, Mary will consult her solicitor and here’s what she finds out.

Let’s say Bob and Mary had their piece of paper and were married.  Mary is told that she is entitled to make a claim in relation to Bob’s house and his pension, as they are matrimonial property.  The value of Bob’s business is also relevant to dividing out the matrimonial financial pot.  Mary is entitled to remain in the house, in the interim at least, as she has matrimonial home rights.  She might be entitled to spousal maintenance for herself.  She should also benefit in the event of Bob’s death if he does not have a Will, as she is (until the divorce) his spouse.  She is also entitled to child maintenance, assuming she remains the children’s primary carer.

And if Mary and Bob weren’t married because on the morning of the wedding Mary was locked in the bathroom by her sister, who really wanted to marry Bob herself (again, it is the east end) and she missed the ceremony?  Then what?  The story would be quite a different one.  Unless Mary could establish that Bob’s house was subject to a trust in her favour, then she would be unlikely to have a claim in respect of the house.  She would have no claim to his pension.  She has no entitlement to maintenance for herself.  She could potentially consider looking at bringing a claim under Schedule 1 of the Children Act for financial support for the children, but other than that her claim would be limited to child maintenance which she would be entitled to for the children if she remains their primary carer.  In the event of Bob’s death without a Will, the children would benefit but Mary would not.  She might be able to bring a claim for financial provision in the event of his death, but it is something she would likely have to fight for.

Married Mary and unmarried Mary do have one thing in common though – neither one will qualify for Legal Aid.

If you have a family law issue that needs resolving, our team of experiencing and dedicated family lawyers are here to help.

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Rebecca Finnigan

Rebecca is an accredited member of the Law Society’s Advanced Family Law Panel. She is also a member of the solicitor’s family law association Resolution.

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