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#Law: No such thing as common-law wife

When Elayne Oxley sold her former council house and was poised to plough the proceeds into a new shared home in her partner's name, her solicitor delivered a warning that should have made her stop and think. To protect her interests, her right to a share in the ownership of the new house should be recorded in writing. Oxley blithely dismissed the advice, insisting airily that she knew her partner, Allan Hiscock well enough not to need written legal protection .

Thirteen years on, she has just emerged from a two-year legal battle with her former partner which is estimated to have run up total costs of at least 50,000. Last month she was awarded 40% of the proceeds of 35 Dickens Close, Hartley, Kent, in a court of appeal judgment which ensures Oxley v Hiscock a place in the law books.

Oxley, 51, who now runs a domiciliary care service, was divorced with three young children when she met Hiscock. He advised her to buy her council house with a 20,000 discount under the right-to-buy legislation and provided the 25,200 purchase price from the sale of his own home, taking a legal charge - a form of mortgage - over the house to protect his investment. When that house was sold, the 61,500 proceeds went into the Hartley house, along with another 35,500 from Hiscock and a mortgage of 30,000.

After 16 years together, 10 of them in the Hartley house, Oxley was shocked to discover, when the house was about to be sold for 232,000 in 2001, that Hiscock had described her to the buyer's solicitors as a sitting tenant . Although the couple had never married, they had built a home together with the three children of her earlier marriage, sharing their lives, expenses and outgoings.

Much wiser now, Oxley advises anyone planning to skip marriage and set up home with a partner to spell out unambiguously in advance what each will be entitled to if the house is sold. I really would not want anyone else to go through what I've gone through. Cohabiting couples should have a written agreement expressing their interests in the house. Otherwise one half can lose everything.

That's exactly what happened to Valerie Burns, who thought she would be looked after by the law when her 17-year relationship broke up in the early 80s. She brought up two children, ran the house, which was in her partner's sole name, and worked part-time to pay her share of household expenses - a history which, had she been married, would have entitled her to a substantial share of the family assets. But when she took her case to court, she got nothing. Even today, a cohabitee who makes no contribution to the deposit or mortgage payments could walk away from a decades-long relationship empty-handed.

In the 25 years since the General Household Survey first included questions on cohabitation, the number of couples opting out of marriage has soared. In 1979 the first figures showed just 3% of couples living in unmarried unions - around 350,000 couples. According to the latest statistics, more than two million couples - one in six - are living together unwed and one in four children are born to cohabiting parents. On current predictions, one in three couples will bypass marriage by 2021.

The statistics reveal that more than two million couples currently enjoy none of the protections that marriage provides - no automatic right, if the relationship ends, to claim a share of property owned by the other partner, a lump sum, or regular maintenance payments. Yet most, according to a recent study, are unaware just how exposed they are.

Common-law marriages have not existed in England since 1753, yet the belief that a period of living together - seven years is popular, but some guess two or four - confers legal protection persists so stubbornly that the government is planning a publicity campaign this summer to try to dispel the myth. Among the spurs to action was the British Social Attitudes Survey 2000, which found that 56% of the general public, rising to 59% of cohabitees, mistakenly thought there was some form of common-law marriage that gave them rights similar to those enjoyed by husbands and wives.

The reality, as Oxley discovered, is that a cohabitee's rights are much more limited if the shared property is in the other partner's sole name and there is nothing in writing to prove the non-owner's entitlement to a share. The only option is to mount expensive court proceedings with a far from certain outcome, relying on principles of 19th-century trust and property law.

The judge believed Oxley's evidence - which Hiscock denied - that he had advised keeping her name off the deeds to prevent a claim by her ex-husband Ken for a share of the house on her death. That was enough to show that both intended she should have a stake. But in what proportions?

Oxley claimed half, while Hiscock argued that she should get only 22% - the percentage of the purchase price attributable to her share of the council house sale proceeds. The county court judge awarded her half, but the court of appeal reduced it to 40%.

Once a claimant establishes that the couple's intention was that she should have a share, the appeal court judges said, the court can look at the whole course of their dealings over the years to establish what that share should be. Oxley's contributions to the family finances had helped to pay the mortgage, they ruled, entitling her to a bigger share than the capital she had put in from her previous home.

Pressure is growing for reform of the law to give cohabitees more rights and more certainty. The Law Commission, the official body which brings forward proposals for law reform, is considering cohabitation for inclusion among its next projects.

In Canada, Australia and New Zealand, unwed partners can expect a much better deal when relationships break down. In New Zealand, women in long unmarried relationships have won substantial shares of the assets built up while they were cohabiting. One - worth only 34,000 at the end of a 22-year relationship, while her partner, working full time, had amassed 830,000 - got one-third of the assets. The other, after 24 years, won a share that included 25% of her partner's pension fund. A Canadian woman who split up with her partner after 12 years was awarded his house.

Meanwhile, a new book by Richard Collins and Tanya Roberts, two family law solicitors at the law firm Charles Russell (Living Together: Is Marriage the Better Buy? Lawpack), will tell you whether you're better off married or cohabiting on a range of fronts from death to taxes. Generally speaking, if you're the richer partner, cohabitation will preserve more of your wealth. If you're the poorer half, marriage will give you a better deal.

But where marriage isn't on offer, don't imagine the law will automatically protect you if there's nothing in writing. Elayne Oxley, now living with a new partner, says: People have a misapprehension that after either x number of months or a number of years you are a common-law wife. It doesn't exist. The law doesn't recognise that. But as much as a married person, you are putting in a huge investment for the future and it can all be wiped out. People cohabiting should have something in writing.