There is no such thing as common law marriage

In spite of all the publicity  that cohabitees do not have the same rights as those who marry or enter into a civil partnership, there are still cohabitees who are labouring under the dangerously mis-held belief that their ‘common law’ marriage will save the day and pave the future with gold if the relationship ends.

So, for all those in this category: THERE IS NO SUCH THING AS A COMMON LAW MARRIAGE.

You are either married or in a civil partnership or you are not.  And not only does this difference in status affect the practical process through which a financial settlement might be achieved upon the break-up of the relationship in life, it affects what one cohabitee might receive in the event of the death of the other if that significant other dies either without having made a Will or having made a Will but without making provision for the partner.

What prompts this topic is a recent case where a client was left in just this situation.   She and her partner lived in his (sole name) home and had done so for over 20 years.  He died without having made a Will.  The rules of Intestacy said that his next of kin should inherit his house, his next of kin being his three adult children by his earlier marriage.  Those children wanted the house sold as soon as possible. Our poor lady was left without home or financial provision and having to face a showdown with three unsympathetic quasi-step children.   The answer was found in the Inheritance (Provision for Families and Dependants) Act 1975; under s.1, cohabitees are entitled to make a claim against the estate of their deceased partner.  Any such claim needs to be made within 6 months of the date of the issue of the grant of representation – so don’t delay.

The Act requires that the surviving partner must have been living in the same household as their partner ‘as husband and wife’ for the whole of the 2 year period ending immediately before the date of the deceased’s death.   Our lady was allowed to remain in her home as her claim being successful, that was what the  Court  ordered as ‘reasonable financial provision’ under the Act.   The Court has wide powers to make orders against the estate of the deceased, and in addition to the transfer of property, this can  include lump sum and maintenance payments

How can we help you?

Most people put off making a Will either because they think they have nothing to leave or they just don’t want to think about death!  Whilst this is understandable, a cohabitee can be extremely vulnerable if provision is not made in a Will – so don’t put it off – make that Will now!

Contact our Private Client department by calling  01206 577676 or by emailing [email protected]