The Myth Of The "Common Law Marriage"

• Published date: 17 May 2021
• Subject Matter: Family and Matrimonial, Family Law, Wills/ Intestacy/ Estate Planning
• Law Firm: Wrigleys Solicitors
• Author: Ms Elizabeth Pearson

Our Private Client team solicitor, Elizabeth Pearson 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...