Although the status of partners who are not lawfully married is recognized by many laws, the legislation has not determined a one and only definition for the term “common law partners”.Here we shall address the following issues :
Can we define the criteria by which the status of spouses as common law partners is to be determined?
Is a common law partner entitled to alimony and on what basis?
What are the property relations between common law partners?
Is there an inheritance right between common law partners ?
What are the relevant principles in respect of the agreement between common law partners ?
Common law partners as a factual situation – The fact of a couple’s being common law partners does not confer on them any status under the applicable law. Rather, this is a factual situation, which has various legal consequences. However, the formation, continuation and cancellation thereof are only dependent on the couple’s wish and conduct.Furthermore, case law emphasizes that the fact that spouses are common law partners should be substantiated by evidence, similar to any other fact. Namely, a partner claiming the status of a common law partner must prove this on the basis of the rule:The onus of proof rests with the claimant.
Since the issue in question is not status, it is required to make a declaration as to the spouses’ being common law partners, incidentally, in respect of each and every issue separately (that is, for example, for the purpose of obtaining entitlement to pension rights of a common law partner, a motion should be submitted to the Labor Court and the required elements pursuant to the articles of the pension fund should be substantiated, while, for the purpose of recognition pursuant to the Inheritance Law, a motion should be submitted to the Family Court to declare the spouses as being common law partners pursuant to the criteria provided in the Inheritance Law).
The criteria for recognition as common law partners – The institution of common law partners is not uniformly defined in case law. A couple shall be treated as common law partners upon the satisfaction of two principal conditions:The existence of a domestic life as husband and wife and the management of a common household.
The test of the existence of these two constituents is not a rigid test but a circumstantial test of the relationship between the specific partners.Namely, considerable weight is given to the subjective perception of the couple’s relationship, as opposed to any external impression.At the same time, it was held that these are not two detached elements, which are not integrated one with the other, but are rather two intertwined elements.
Case law adopts a flexible criterion, expanding the variety of the options to be treated as common law partners, while facilitating the threshold requirements by means of significantly restricting the formal tests required to benefit from the status of a common law partner.
Thus, for instance, there are cases where a very short period of cohabitation will entitle the couple to be recognized as common law partners, since no minimum time of cohabitation has been defined in the case law to this end.Furthermore, in certain cases, partners are recognized as common law partners even where one of the partners is still married to someone else.Also, a far-reaching judgment was given, recognizing partners who resided in two different homes – as common law partners.On the other hand, pursuant to the Inheritance Law, 5725 – 1965, rights were denied to common law partners who are married to others.
Separation Between Common law Partners
Separation between common law partners has most of the characteristics of proceedings of divorce between married couples. Our firm is experienced in providing ongoing professional advice throughout the period to clients in this process, while exercising discretion and intellectual flexibility to attain the best outcome for you !