Despite the common misconception, there is no such thing as a “common law marriage” in the UK. Rather, a mythical notion has long been in circulation that, if two people live together as though married, the law will treat them as such.
This urban myth is simply untrue. In reality, the term “common law marriage” has no legal standing. If an unmarried cohabiting partner dies, the surviving partner is not automatically entitled to anything – no matter how long-term or serious their relationship was. The only way for a couple’s union to be legally recognised in law is for them to get married in a manner recognised by law, or to enter into a civil partnership.
Yet, in spite of this, a recent survey by charity Will Aid revealed how widespread the misconceptions about the legal consequences of cohabitation are in the UK. The survey revealed that a shocking 68 percent of cohabiting couples are unaware of the rules of intestacy and what would happen to their estate if they died without a will.
Will Aid’s survey further found that 32 percent of cohabitees wrongly believed that their estate would automatically pass to their partner if they died, and 8 percent of respondents believed that their estate would go to their “close friends.”
A large driver of these misconceptions around intestacy come from a lack of awareness around the issues this can cause. According to the data collected, 11 percent of respondents admitted that they had never even thought about the issue, despite the only two certainties in life being death and taxes. In the case of a cohabiting couple, taxes could well be a very real issue, since there can be serious inheritance tax implications, depending on whether a couple is married or not.
This poses serious real-world consequences for many.
Where someone dies without leaving a Will, the way their estate passes will be governed by a framework called the Intestacy Rules. That means that the estate will pass to the first living person meeting the following criteria: spouse, children, parents, siblings, and then more distant relatives. This may not follow the true intentions or wishes of the person who has died.
For example, if the deceased is still married to a former partner, whom they have children with, the estranged spouse and children would receive everything. That would leave the cohabitee with none of the estate – and potentially nowhere to live.
The widespread misconceptions surrounding cohabitation and legal rights upon death have unfortunately led to a steep increase in disputes in the wake of a loved one’s death.
Although challenging, it can be possible for a cohabitee to make a claim against an estate for financial provision in some circumstances. A cohabitee can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they lived in the same household as the deceased for at least two continuous years before death, as though a married couple. However, any claim by a cohabitee is limited to such financial provision as they require for their maintenance. Therefore, if the cohabitee has a good income of their own, a court award for financial provision is unlikely.
In certain cases, other avenues of redress may also be available where the cohabitee has contributed to a property owned by the Deceased. In those circumstances, it may be possible to argue that the cohabitee has obtained a beneficial interest in the property.
Litigation, though, never comes with a guarantee of success, and it will inevitably be a stressful, costly, and lengthy process for cohabitee and any other family members who may be involved. That unnecessary stress and cost could all have been avoided if the deceased had put in place a valid will to provide for their partner.
The reality is that cohabiting couples now represent the most common family type in the UK – a social reality which legislators have yet failed to adequately grapple with. It is now vital that the law surrounding cohabitation and intestacy is reformed to keep up with society’s way of life and to ease the burden on cohabiting couples. This would inevitably prevent a further rise in disputes stemming from the widespread misconceptions regarding “common law marriage”.
For now, however, cohabiting couples should take legal advice, and carefully consider the potential benefits of legally formalising their partnership or making a will which would ensure that their partner is properly looked after in the event of death. This is a task often quite understandably left in abeyance since none of us likes to actively consider our own mortality. It is wise to do so, however, to avoid leaving loved ones in a messy, expensive dispute with other members of the family.
Cathryn Culverhouse, Partner at DMH Stallard