The number of recent enquiries regarding contentious probate matters involving unmarried cohabiting couples has increased. This is not surprising when according to the Office of National Statistics the number of cohabiting couple families continues to grow faster than married couples and lone parent families with an
increase of 25.8% over the decade 2008 to 2018”
However, the myth of common law marriage Is sadly alive and well.An unmarried cohabiting couple, no matter how long they have been together, does not accrue any legal rights as a result of that relationship. Sadly, many individuals who have not sought legal advice remain unaware of this.
The Cohabitation Rights Bill which is still awaiting the outcome of the second reading in the House of Lords
and, if eventually given Royal Assent, should Provide certain protections for persons who live together or
have lived together as a couple; to make provision about the property of deceased persons survived by a
cohabitant; and for connected purposes.
However, the main issues surrounding the lack of provision made for cohabitees upon the death of an
unmarried partner are either:
(i) The deceased has not left a Will, which means that their estate would pass under the Statutory Rules
of Intestacy or
(ii) There is a Will, which has not been updated (perhaps following a divorce).
Cohabitees do not automatically inherit under Statutory Rules of Intestacy.
Whilst a Will is automatically revoked upon marriage, this is not the case on divorce. On divorce the Will is
treated as if the divorced spouse has already died, but otherwise remains valid. It is therefore incredibly
important for Wills to be updated at pertinent points in someone’s life (such as marriage and divorce)
and even more important that professional advice is sought at the right time.
Financial Provision Claim
If a cohabitee has not been provided for on death, by their unmarried partner, it may be open to them to make a
claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”). In order to be
eligible to bring a claim under the 1975 Act the claimant must establish:-
(i) That cohabitation was for two whole years immediately prior to death.
(ii) They lived in the same household at the time of death.
(iii) That they were living as if husband and wife or civil partner.
Whilst all these elements must be present, the Court will take into account the practicalities of a relationship
and therefore living together for two years, can include time spent apart due to work or time spent in hospital or
some other reason. Similar considerations will be made in relation to whether an unmarried couple were living
together as husband and wife or civil partners.
Once eligibility has been established, the court will need to decide whether the cohabitee was reasonably
provided for and if not then what reasonable financial provision would look like for their maintenance. To
assess this, it would take into consideration all the elements outlined in section 3 of the 1975 Act, which
includes the claimant’s financial position, the size and nature of the estate and the financial position of
any other beneficiary and / or claimant where relevant.
Therefore, it is essential that Cohabitees write their Wills, if they are to avoid massive problems for
the surviving partner following first death.
Member since: 22nd March 2018
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