Debunking family law myths: The common-law spouse
Despite popular belief, in Jersey we have no concept of a “common-law spouse.”
So what does this mean?
This is significant in the context of family law and wills and estate planning. There are ways to mitigate the impact, and it is important to seek advice on these important issues.
Unless you are married or in a civil partnership, the Family Court has no power to make any financial award of capital or maintenance to you from the other person’s resources (except in respect of child maintenance) upon a separation.
Jointly owned property
There can also be difficulties in relation to a jointly owned property. Divorcing couples can ask the Family Court to determine what should happen to the property and how the equity should be shared if agreement cannot be reached. Co-habiting couples do not enjoy the same access to the Family Court and would need to advance any claims in relation to the property in a civil court if unable to agree between themselves.
For this reason, it is a good idea to consider a co-habitation agreement which can record what should happen to jointly owned property in the event of a separation. For instance, should it be sold? How will the equity be shared? Should there be the option for one person to buy out the other? The agreement can even specify how living expenses should be shared, if desired. Such an agreement can provide some important clarity in the event of a relationship breakdown.
Wills and estate planning
In the context of wills and estate planning, if you are in a co-habiting relationship then it is essential to prepare wills dealing with any property and other assets that you may own. If you want your partner to benefit, but are not married or in a civil partnership, then it is imperative that you record these intentions in a properly drafted will.
Otherwise, without a will, upon death the assets will pass to other family members, such as siblings or other close relatives (unless you have children). This can leave a partner in a very difficult situation at an already distressing time and with no ability to make any claim to share in those assets it can feel quite unfair.
Key takeaways:
If you are in a co-habiting relationship:
- Consider entering into a co-habitation agreement detailing what is to happen to assets in the event of a separation.
- Consider making Wills to ensure that those you wish to benefit will do so upon your death.
And if you need support to understand your options, our family lawyers can help.