No Such Thing As “Commonlaw Man & Wife”

Cohabiting couples – officially the fastest-growing family type in the UK – face a legal minefield if they have not written a will, experts warn.

What’s more, anyone who still believes the myth of “common law man and wife” is in for a nasty shock, according to the family team at national law firm Clarke Willmott.

Last week the Office for National Statistics revealed cohabiting couples had increased by a just over a quarter in the last decade.

And, while married couples remain the UK’s dominant family group, the proportion of cohabiting couples has risen from 15.3% to 17.9% of the population – equating to 3.4m people.

Despite this, a cohabiting rights bill which is urgently needed to protect cohabiting couples has still not been passed through Parliament even though provision has been made to protect same sex couples under the Civil Partnership Act 2004.

“The fear is that these cohabiting couples do not realise the pitfalls of not getting married or making a Will,” said Stacey Collins, paralegal in the Family Law team at law firm Clarke Willmott.

“If cohabiting couples are not named in a Will then they don’t have an automatic right to inheritance,” added Philip Coates, who works in the firm’s Private Client team.

Only 26% of cohabiting couples have made Wills so, under rules of Intestacy, the cohabiting partner would not have automatic rights.

Also, if someone dies without making a Will the process of probate can take longer and incur significant additional costs.

“Under those circumstances the cohabiting partner would have to make an application to the court under Inheritance (Provision for Family and Dependants) Act 1975,” continued Stacey.

Cohabitants’ eligibility to apply under the 1975 Act depends on the period of cohabitation immediately prior to death – for example if for two years cohabitants were living in the same household as spouses/civil partners, they have the right to a claim.

“However, not only are there costs associated with the application, but this is also likely to cause huge tensions between families,” she added.

Cohabiting couples are not entitled to pension or life insurance unless they are named specifically as a beneficiary.

“This underlines the importance of writing a Will,” continued Philip, “There is also a danger for cohabiting couples to assume they have the same benefits, such as tax exemptions, as married couples, when this isn’t the case.  

“If you inherit money or property from an unmarried partner, you are not exempt from paying inheritance tax, as married couples are, and a cohabitee does not inherit their partner’s inheritance tax allowance like married couples do.

“What’s more, if a cohabiting partner subsequently dies and their cohabiting partner was not present at the time of death or dies at a different address to the address of their cohabiting partner, they will not be eligible to register the death.”

Other pitfalls for cohabiting couples include:

  • Issues accessing cohabitee’s bank accounts, savings account and credit cards etc
  • No automatic entitlement to cohabitee’s last salary unless named, potentially leading to difficulties paying mortgages and household bills
  • No entitlement to bereavement support payments of £3,500
  • If a parent is not named on a birth certificate they will not have automatic parental responsibility.

“There is support out there for those who find themselves in this position,” explained Stacey. “For instance, WAY (Widows and Young) is a support group that assists widows and unmarried partners.

“Just remember there is no such thing as common law man and wife – it is a complete myth.

“Sadly, many people still believe in that and the mistaken assumption it offers them legal protection – it does not!”

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