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15: There is no such thing as common law marriage

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15: There is no such thing as common law marriage
Leave your thoughts Geoffrey Kertesz

By Geoffrey Kertesz

Couples living together do not have the same rights as couples who are married or in civil partnerships. Nonetheless, the myth of ‘common law marriage’ persists.

When married couples divorce, each spouse’s rights and obligations on divorce are clearly set out. The same is true when a spouse dies; the widow(er)’s rights are clearly set out whether or not the deceased spouse left a will.

However, English law does not provide unmarried couples with much clarity or certainty where a relationship ends, either by death or break-up. This is not to say that couples living together do not have legal rights. It is just that those rights are not automatic.

Rights of unmarried partners on death

If someone dies without a will, the ‘laws of intestacy’ govern how the estate is distributed. In essence, the deceased’s assets are divided amongst the widow(er) and close relatives according to a pre-determined set of rules.

An unmarried partner receives nothing under the intestacy rules and they would have to apply to the court under the Inheritance (Provision for Family and Dependants) Act 1975 in order to obtain ‘financial provision’ from the deceased’s estate. Only certain categories of people can make this type of claim. For example, a person living with the deceased for two years immediately before death as husband, wife, or civil partner can make a claim, as can any person who immediately before death was being maintained wholly or partly by the deceased. These claims are not uncommon but are not always straightforward.

Rights of unmarried partners on break-up

A common scenario is where one person moves in with a partner who already owns a property. While both partners contribute to the upkeep of the property, the property remains only in one partner’s name. If they are married and get divorced, the court is less likely to be concerned with whose name is on the deeds and will divide the property according to well-established principles of divorce law.

If they are not married, things are less simple. Each person will need to demonstrate (and document) what was contributed and when, as well as possibly having to demonstrate that there was either an express agreement between the unmarried partners or an agreement that can be implied from their conduct. This requires a large amount of historic, forensic detail which can be difficult to pull together.

What unmarried couples can do

In order to prevent a costly dispute from arising in the first place, unmarried couples should consider taking steps to formalise their affairs, either by executing wills or signing papers confirming how certain assets are to be treated. Every situation is different and requires specialist advice.

Not having these formalities in place does not mean that the affairs of every unmarried couple will end up in court. In fact, the vast majority of these issues are resolved out of court. But by their very nature, these claims come about because of a major life event which means there can be a high degree of emotion involved. It is best to seek specialist advice early to be aware of all the options.

Another option is simply to get married, which would deal with a number of these potential pitfalls. Also, assets passing to a widow(er) do not incur Inheritance Tax, and what could be more romantic than a tax saving?

6 June 2016

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