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The myth around common law marriage

  • rubytuesday
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05 Sep 12 #353963 by rubytuesday
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Interesting article from Law News Uk:



The myth around common law marriage



Solicitor, Rebecca Dzioban, at law firm, ''Charles Russell'' seeks to clear up the suggestion that being in a ''common law'' marriage protects you when it comes to a break up.



The recent media coverage of the relationship breakdown between Simon Brown (lifestyle guru to the stars) and his long-term partner, Ms Brown, has highlighted, once again, that there is an abiding belief amongst the public that committed partners will be entitled to a share of assets should the relationship breakdown later on.

Simon Brown is disputing that his ex-partner has any right to a share in the £500,000 home they occupied for more than 15 years despite Ms Brown’s claim that they lived as man and wife. Ms Brown is bringing a claim in the High Court for half the value of the home, half the value of Mr Brown’s collection of classic cars and half the royalties from two of his books. Ms Brown asserts that Mr Brown assured her that she “need not worry” about their home being in his sole name “as she was protected as a common law wife” should they part ways. Ms Brown asserts that she took the assurances to mean that she had a half share in the home and other assets they purchased during their relationship.

However, after the couple separated, Mr Brown told his former partner that she had no “legal or beneficial interest” in the home, his cars or his books.

Ms Brown has stated that she is only going to Court to claim what is legally and morally hers. She wishes to highlight the plight of many partners (particularly women) who operate under the illusion that there is such an institution as common law marriage. She has called for the law to be modernised to give long-term partners similar property rights to the parties to a marriage or civil partnership.

To be clear, there is no such thing as “common law marriage”. Common law marriage has not existed in England and Wales since 1753. Being in a long-term and committed relationship does not give rise to any entitlement in and of itself. Does that therefore mean that Ms Brown will receive nothing? Property will be divided in accordance with property law principles rather than in accordance with divorce law which gives the Court a wide discretion to redistribute assets, liabilities and income without recourse to the narrower parameters of property law.

Most long-term partners will have made joint purchases, most notably of property, together and there will be in many cases provision made for any children of the parties.

If Ms Brown wished to protect herself she should have sought legal advice upon the purchase of the family home to ensure that her entitlement to a share in its value was recorded in a Deed. She should also have sought advice upon and entered into a cohabitation agreement, setting out how the assets, income (and debts) were to be held and distributed upon any subsequent relationship breakdown.

As things stand, Ms Brown will have to try to persuade the Court that she and Mr Brown had the common intention that the home was a joint asset, which will involve relying upon the verbal promises that Ms Brown asserts Mr Brown made to her during the relationship in order to prove that Mr Brown holds the property on trust for them both. She will have to produce evidence relating to their conduct in relation to the property to support her assertions on beneficial ownership and to show that she relied to her detriment upon the belief of beneficial ownership. If she can persuade the Court that she has a beneficial share in the property, the next hurdle will be to establish the size of that share.

In these recessionary times, people are often reluctant to pay for specialist advice preferring to cut corners to save money. However, this case brings into sharp focus the dangers involved in failing to seek such advice and the costly results that can ensue. It may well be the view of many that the present law is as outdated as Ms Brown suggests and family law specialists are certainly seeing an increase in ex-partners seeking advice following relationship breakdown. The message for those entering into any committed and cohabiting relationship is to be proactive in protecting their positions rather than finding themselves in protracted and expensive Court proceedings later on.

www.lawnewsuk.co.uk/Legal-Areas.aspx/Fam...-common-law-marriage

  • dukey
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05 Sep 12 #353993 by dukey
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Its hard to believe people think common law marriages exist, i think Miss Brown will need lots of luck, she wont leave with nothing but compared to what she would be entitled to as married, lots less.

  • .Charles
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05 Sep 12 #354035 by .Charles
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Until cohabitation has legal status, laws cannot be foist upon cohabitees.

By making a choice to get married or by entering into a civil partnership you accept the legal status, and the legal procedure, that goes with it.

If legal procedure was superimposed onto parties who cohabit, their choice to live outside the legal scope of marriage or civil partnership will be taken away from them.

People should have to opt-in to a cohabitation arrangement otherwise there will be a situation where friends or relatives who live in the same property attain a beneficial entitlement even when there was never any intention of this.

In light of housing shortages the last thing you want it to discourage people from living together by introducing financial penalties which are already catered for in marriage or civil partnership.

Arguing that unmarried parties are not aware that they do not have a financial claim is also a folly. Ignorance of the law is no defence.

If it were a defence parties who did not appreciate the intricacies of the Matrimonial Causes Act when they were married would be able to ignore the Act when seeking to retain all of the matrimonial assets on the basis that their spouse had done nothing during the marriage. We all know how that line of reasoning goes in court...

Charles

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