The myth of the “Common Law marriage”

Our Private Client team considers the law surrounding the provision for cohabitees on death.

“But we’re common law husband and wife…aren’t we?” Unfortunately, there’s no such thing.

Despite cohabiting couples being widely reported as the “fastest growing family type in the UK”, the law in England regarding the protection of cohabitees on death is far behind where most people would expect it to be. We are often contacted by individuals who mistakenly believe that the law will protect those in long term relationships, who live together “as common law husband and wife”. However, the reality is that the only way to be sure that your partner will inherit anything on your death, is by putting in place a valid Will.

What happens if there is no Will?

If a partner in a cohabiting couple dies without a Will, their estate will pass under the rules of intestacy. These rules set out an “order of priority” in law as to who should receive the deceased’s estate. Where a couple are unmarried, any children will be at the top of this list, but if there are no children, the law works its way through a list of blood relatives, including parents, siblings, nephews/nieces and beyond. Unmarried partners do not feature at all in the list of family members who inherit under the intestacy rules.  

Minimal protection is offered to cohabitees by the Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act”). The 1975 Act lists those who might expect to receive “reasonable financial provision” on the death of an individual, and allows them to make a claim against an estate if they are not so provided for, either by Will or through the intestacy rules.

A partner who has been cohabiting with the deceased for at least 2 years prior to their death may be able to pursue a claim under the 1975 Act for financial provision. The Court will then determine whether there has been a failure to make reasonable financial provision from the deceased’s estate, as would be reasonable for the maintenance of that unmarried partner. However, the Court has the discretion as to what provision is made from the estate, if any, and the process can be expensive and time consuming.

It is worth noting that there are some assets that could pass to a surviving partner without a Will. If a couple own a property together, or have joint bank accounts, these assets could pass automatically to the surviving owner. However, the position needs to be considered carefully to make sure that will be the case, as, not all properties, in particular, are jointly owned in this way. Even if they are owned in this way, if the couple have any wishes about how other family members (especially children) benefit from these assets too, care would need to be taken to ensure they are owned in a way that allows that.

The simple solution to avoiding this uncertainty is to take appropriate advice and put a Will in place. This allows both partners to have control over where their assets will pass on their deaths and can give them the peace of mind that provision will be made for their loved ones.