Myth-busters #3: I’m in a Common Law Marriage

Many couples in the UK choose to cohabit but not marry or enter into a civil partnership.

Some do so under the belief that they will be protected because they have a ‘common law marriage’ and will be treated much the same as a married couple in relation to tax, inheritance and many other issues.

Unfortunately, this is simply not the case. Common law marriage does not formally exist in the UK and cohabiting partners have no automatic rights over their partner’s assets after death.

If you are cohabiting and do not have valid Wills in place to include each other, there is every chance that your partner will get nothing when you die.

The Intestacy Rules govern how someone’s estate is divided if they die without a Will and there is an order of precedence to be followed. Cohabiting partners are not currently included in the list of people who may inherit under these Rules and so it is vital that, if you want any of your property and assets to go to them, that you make a valid Will setting this out clearly.

Parliament has released a research briefing on this issue and you can find it here. This briefing sets out Parliament’s findings on the increase of cohabitation and its position with regard to cohabiting couples and their legal rights.

If your partner believes that they should have received some (or all) of your estate when you die and you haven’t left a Will, there is one option currently open to them. They could bring a claim, asking the Court to provide for them from your estate, under the Inheritance (Provision for Family and Dependents) Act 1975.

In order to qualify to bring a claim, you and your partner must have lived together, as a couple, for at least the two years immediately prior to your death. They will have to prove that being left nothing by you on your death was not reasonable. What is ‘reasonable’ differs from person to person.

Although your partner has the right to bring one of these claims, there is no guarantee whatsoever that they will be successful. The outcome depends entirely on the facts of each case.

The cost of such claims run to in excess of £35,000 per person to reach trial and therefore your partner could spend that much only to be told by the Court that they’re not going to receive anything. On top of this, also consider the emotional cost to your partner of having to bring a legal claim at an already difficult time.

Needless to say, it is usually the case that it is much cheaper and easier for you and your partner to make Wills now, to ensure that your respective wishes are met.