I am pleased that so many have taken an interest in the issue of the common-law spouse and its proper legal definition and the rights, benefits and detriments that ensue from it. Now, I must make it clear that each case turns on its own unique facts and that one simple factual difference can alter the legal response to any particular case. What I explain is not legal advice, but the legal position of the law and based on your situation you need to seek legal advice on how that affects your individual circumstance.
I must admit, that from one end the married spouses are asking their own questions and on the other end those I classified as the mistress/lover/ partner or any other name, other than married spouse or common-law spouse, are also asking their own questions. It is good that eyes are being opened and adults involved in these intimate, life-changing relationships are thinking critically and choosing to address their legal status within their relationship.
The married spouse
In the reality of most situations, the married spouse always seems to have the advantage because the law clearly bestows direct benefits as the institution of marriage was intended to create matrimonial rights. However, many really get married based on emotions and not the tenements of the social contact that a marriage contract really is, thus may do not stop to consider the immediate and direct benefits of entering the marriage contract.
The married spouse, nevertheless, enjoys benefits that the common-law spouse will never enjoy. Just to give examples of the more salient benefits, I note the following:
1. The wife is automatically entitled to adopt and use her husband’s surname and can keep using it even after obtaining a divorce, but the common-law spouse will never obtain it as a right under the union;
2. The children of the marriage will automatically, without the father being present to register them, carry the surname of the father, but the children of the common-law union can only obtain it if the father is prepared to lawfully recognize the child and go register him and consent to the child being registered in his name;
3. Under an intestacy of a spouse (that is, dying without leaving a Will), the married spouse automatically is entitled to one-third of the estate and the remaining two-thirds is to be divided up equally between the children, even those not of the marriage but lawfully recognized by the spouse, but a common-law spouse would first have to prove she/he is common-law before said benefit is allowed;
4. Apart from all the other laws dealing with family issues, married men/women have a special law entitled the Married Persons Protection Act that affords them very important legal rights and benefits not extending to the common law spouse;
Of course the mistress/lover/partner that cannot qualify as a common-law spouse has absolutely none of these rights. Thus, this has prompted two very important questions from readers, which I will try and address as comprehensively as possible.
How a Will remedies non-common law status?
So clearly one of the biggest concerns in many relationships is the financial security and the sharing of resources and wealth of the partners, especially if it is obtained by the wife and husband working hand in hand… Or there is the concern that one spouse, usually the female spouse, has concerning her dependency or financial security from her husband… Or her concern that she worked with her husband but he never put any assets in her name or that he is now using it for the benefit of the lover/partner. Even better yet, there is the concern the lover has about her financial security because she is neither wife nor common-law. Thus, I was asked by many if the spouse writing a Will and Testament can remedy the situation of the wife, the common-law spouse or the mistress/lover/partner. The answer is not a clear no, nor yes, which I will explain.
If the man is still married and dies without a Will, his lawful wife and all his lawfully recognized children will benefit under the rules of intestacy. But if that same man writes a Will and includes in it provision for the common-law wife, that is good for her and can hold up provided he is not seeking to Will out to her what his previous wife of his previous marriage can make a claim against, as part of her assets under the marriage or some settlement agreement resulting from the marriage.
Also, if the man/woman remains lawfully married so he/she makes provision in his/her will for his/her lover or partner, it does not mean that automatically that Will can stand, simply because the lawful wife and children can challenge it. It does not mean that they will surely win, because there must be good basis for challenging it and showing that said person is not entitled to those assets as they were not the sole property of the deceased spouse. The main ground for challenge could be where the lawful spouse and children have been excluded from the Will and the lover gets it all or almost all, since the wife and children, especially minor children, can claim and prove that they are rightly entitled to be taken care of by the deceased spouse. The details of how this would work pivots on each specific case. A Will, while it expresses the wishes of the deceased and should generally be honoured, can still be challenged.
For example, how can a man who is going through the process of divorce and division of matrimonial property will the very matrimonial property, the subject of the dispute, to his lover, excluding his wife? But he may seek to protect the lover by creating such Will, but dies before the divorce is complete or the division of property is complete, and in such situation, especially where big money is involved, the party who has worked to build those assets has every reason to challenge the validity of the Will.
But the Will can surely serve the purpose of the deceased spouse, who indicates his/her funeral wishes, and whom he/she wishes to carry out such wishes and how he/she wishes to be buried. Thus in said situation, even if the estranged spouse seeks to recover the body to carry out the funeral service as he/she pleases, the last wishes of the deceased are what would supersede as to how he/she will be buried.
So, if in the best of circumstances and family, a Will can be challenged and be an issue, can you imagine what would happen in the worst of circumstances? Simply put, the Will is no replacement for a proper divorce, a proper commencement of a common-law union and the proper and fair distribution of assets to those who helped to make it possible.
Are there no benefits for the common-law partner until after five years?
Now, this five-year threshold seems to have provoked lots of uneasiness since many rationalized that they must suffer out the five years with the hope that after five years they will have some benefits, if the person does not end the relationship a month, week or day short of the five years.
Thus, I must explain that for the purpose of getting spousal benefits as if you are married, you must wait the five years. These benefits include, but may not be limited to: getting maintenance as a wife, getting one-third assets as a spouse if the one spouse dies without a Will and getting declaration of property rights upon the breakdown and end of the relationship after five years or more. These benefits you cannot get before five years…. No exception, because these are benefits that run with the rights given to married people and common-law unions of five years or more!
But there are other protections you can get as a person waiting to meet the five-year mark, or a lover, or a visiting partner, or a child’s mother or father. The best ones I can think of are those obtained under the Domestic Violence Act Chapter 179, which when it comes to looking at the relationship, looks beyond the married spouse and the established five-year common-law spouse.
While at a later date I will look at the Domestic Violence Act (herein DVA), more in depth, for now and for the purpose of this portion, I will rely on who can bring a claim under the DVA. At Section 3(1) it states “a person referred to in subsection (2) may apply to the Court for any of the Orders provided under this Act on the grounds that the Respondent is engaging, has engaged, or threatens to engage, in domestic violence.” What I like is that at subsection (2), it lists all the persons who can apply for the Orders and one of them includes “spouse,” but when you look at the definition of “spouse” it states:
“(a) a woman who cohabits with a man as if she were in law his wife;
(b) a man who cohabits with a woman as if he were in law his husband;
(d) a de facto spouse;
(e) a former de facto spouse.”
So you may ask, who is a de facto spouse? Well the DVA also defines that term stating, “De facto spouse in relation to a person, means a person of the opposite sex to the first-mentioned person who is living with the first-mentioned person as that person’s husband or wife though not legally married to each other….and includes a co-habitant, a person in a visiting relationship”
I took time to put all of that because clearly the DVA will not wait until you are five years in a relationship to give you the right of protection against violence in your relationship. Thus, even if you never become common-law spouse because your partner is still legally married, you are still entitled to the same protection as if you were legally a spouse. It even includes the visiting relationship… so if you are mistress/lover/sweetheart/girlfriend all on a visiting basis, instead of living together basis, you get protection under the DVA and I think that is really good and progressive.
Thus, to answer the question posed:– you may have to wait for five years to get rights as if you were the wife or husband for purposes of matrimonial benefits, but that does not impinge on your rights and protection under the DVA, which are immediate and give spouse a wider meaning … as it loosely looks at “spouse,” not giving it its strict legal sense found in other laws.
Thus, whether you are a lawfully married spouse, common-law spouse, mistress, lover, partner, cohabitant or just in some kind of visiting relationship, it is best to know your rights in relation to each other so you know how to make your personal decisions.