Did you know that the number of cohabiting couples in the UK increased from 20.6% in 2011 to 24.3% in 2021? Did you also know that there is now a total of 3.6 million cohabiting couples? Cohabiting couples have become the fastest growing family type in England and Wales and there is no sign that this trend will change in the future.
You may ask why you need to know this or what any of this has to do with you. Well, you may have heard people say that they are in a ‘common law marriage’ based on the length of their relationship and time which they have been cohabiting, and thus they assume that they have similar, if not the same rights as a married couple. Unfortunately, this is something of a myth and this is no more concerning than it is in the event of the death of your partner if they have not made a Will or if that Will does not contain adequate provision for you. This is particularly problematic if you have children, either together or from a previous relationship.
If a person dies without a Will, what’s known as the Intestacy Provisions will apply. Under these provisions, there is no entitlement at all for cohabitees when a partner dies. You will not be entitled to any financial legacy or support at all, even where you are financially dependent or might otherwise lose your home. In the case of a married couple, the spouse of the deceased does receive an automatic legacy (although because this is a fixed sum it is often inappropriate (too much or too little!) so should not be relied upon!) this is not however the case for cohabitees; the estate of the deceased will pass under the Intestacy Rules with no regard or provision for their bereaved partner.
This may seem unfair and does place cohabitees at a significant disadvantage. There is however a way to seek redress in this situation although it is far from ideal and can involve a lengthy trip through the courts. A cohabitee can make a claim under section 1(1A) of the Inheritance (Provision for Family and Dependants) Act 1975 for what’s known as “reasonable financial provision”. This is not a satisfactory redress, as cohabitees who are not married can only make a claim limited to what is reasonable for the cohabitee to receive as maintenance. This will not be as generous as what a bereaved (and otherwise disinherited) spouse may claim, which is based on a “hypothetical divorce” which will often be significantly more as it suggests a division of assets rather than simply a basic level of maintenance.
Of course the main message here is to ensure that you and your partner have Wills which are professionally drawn up following good advice on your own specific position (bearing in mind children who may not be from this relationship and finances of each party) and which make proper and adequate provision for each other.
If however you find yourself in the position where your partner has passed and you need advice on your next steps, please give us a ring as soon as possible.
If you would like to know more about this, or any of the issues raised please do not hesitate to contact Rebecca Walker or Jade Atkins on 01604 887455.
