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Common Law Marriage Misconception

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Recent research shows that more than 50% of the population believe that common law marriage still exists and that if one half of a cohabiting couple dies the survivor will inherit the deceased's Estate. In fact the institution of common law marriage has not existed in England & Wales since 1753 and it therefore comes as a shock to most to find that the survivor of a cohabiting couple will not inherit a share of the home or assets that are held in their deceased's partners sole name, even in situations where the survivor has made a financial contribution, brought up children or sacrificed their career to their financial detriment.

The last decade has seen a dramatic rise in the number of couples that, whilst not married, choose to cohabit. Cohabitation is the fastest growing relationship type in the United Kingdom and numbers of cohabitees is set to rise. The number of children born to cohabiting couples is also steadily increasing. Despite this ever increasing trend the current law in relation to the distribution of Estates leaves cohabitees in a vulnerable position.

The law of England & Wales gives testamentary freedom to an individual to leave their Estate to whoever he or she chooses and making a Will is the best way of providing for and offering protection to a cohabiting partner. However, research shows that around a third of individuals die each year without leaving a valid Will.

If there is no Will in place then the Estate will be distributed in accordance with the rules of Intestacy. The Intestacy rules make provision for a surviving spouse and children. Crucially there is no provision whatsoever for a surviving cohabitee, irrespective of the length of time that the couple have been living together and if they have any children.

Under The Inheritance (Provision for Family and Dependants) Act 1975 a cohabitee can make a claim against the Estate for reasonable financial provision from the deceased's Estate if the cohabitee had been living with the deceased for at least two years prior to the deceased's death. However, such an application can be costly and can place stress on family relationships, with the surviving cohabitee often suing their partners family and in some cases their own minor children. The effect of this can be destructive and result in a situation that was never intended by the deceased.

There is an ongoing campaign by the Ministry of Justice for reform in this area. The Law Commission has published a consultation paper entitled "Intestacy and Family Provision Claims on Death". The paper recommends that cohabiting couples who have a child together or who have lived together for five years or more should have the same rights on intestacy as spouses. Where a couple have lived together for more than two years (but less than five years) up to the date of death, the surviving cohabitee would be entitled to half of the share of the Estate that a surviving spouse would have received. However, the paper goes on to say that if the deceased was still married or in a civil partnership at the date of death the surviving cohabitee would not receive anything, irrespective of how long they had been living together.

However with the emergence of the Conservative/Liberal coalition the future of the law in this area looks uncertain. David Cameron has previously pledged to commission a Family Law Review with the aim of helping parents stay together and promote marriage. Instead of reform they place emphasis on the need for education about the lack of protection for cohabitees. There seems to be general consensus that whilst the current protection for cohabitees is inadequate, great care should be taken not to damage the institution of marriage, which is agreed to have an important and valid role in society. As the statistics show cohabitation is on the rise and there is therefore support for the argument that that reforms would be merely catching up with social trend. Although some feel that giving cohabitees more rights may encourage people to opt out of marriage. It therefore remains to be seen whether the Law Commission's proposed reforms will ever be implemented.

In an ideal world these reforms and intestacy provisions in general would be unnecessary, as it would be standard practice to make a Will. Leaving a valid and effective Will is the easiest way to give effect to your wishes on death and provide protection for your loved ones. Clarion's Private Client team has a wealth of experience in drafting Wills and can provide bespoke advice in relation to making your Will and inheritance tax planning. If you would like to make a Will please contact Stephanie Parish on 0113 336 3355 or via email at stephanie.parish@clarionsolicitors.com

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