Common law marriage "myth"

If you and your partner are unmarried or have not entered a civil partnership, then the intestacy rules (not having a Will) are not your friend. Intestacy doesn’t recognise these relationships, so your partner will receive no benefit from your estate. The concept of ‘common law marriage’ is only a myth and has no legal basis. In the eyes of the law, you could have met online yesterday.

Living together as a couple for a certain period does not grant you the legal status of 'common law spouses'. If you are not married, you have no right to inherit from your partner's estate if they die without leaving a will.

To avoid confusion, a cohabiting couple is two people who opt to live together outside of marriage or a civil partnership yet are in a relationship.

Rights under law

The terms of inheritance law are clear. If you live with your partner but are not married or in a civil partnership, you have no entitlement to your partner's property or assets on death. The situation is no different, even if you have children together. In essence, the law favours married couples or civil partnerships.  If unmarried, the surviving partner receives nothing.

If an unmarried partner's significant other dies without a will, they may be able to apply for provision under the Inheritance (Provision for Family and Dependants) Act 1975. A cohabiting partner can apply for provision as long as they have lived in the same household as the deceased person for two years before their death.

If you are cohabiting with your partner and wish to make sure they inherit from your estate, you should make a will. If you jointly own a property with a partner (and this is registered at the Land Registry), you are entitled to your share of that property. 

Exceptions

It is said that there is an exception for every rule, and sometimes these make a bad situation worse. 

In Banfield v Campbell [2018]. Mrs Campbell left £5000 to her "friend", Mr Banfield and the family home and everything else to her son James on his 25th birthday. She did not, however, update her Will for several years.

On a flight back from the Canary Islands, Mrs Campbell died. James and other Witnesses claimed Mr Banfield was like a lodger as he slept in a separate room, though he did not pay rent because Mrs Campbell did not wish to be alone.

Not satisfied with the £5k, Mr Banfield challenged the Will, stating that he was a financially dependent cohabitant and could not afford his own home. The Judge ordered that Mr Banfield receive a maintenance allowance. Mr Banfield claimed this was not enough. The result was that the judge ordered the home to be sold, and Mr Banfield was given a life interest over half the proceeds. Mr Banfield applied for more, but the judge ordered the other half to go to the son since he was the intended beneficiary of the will. 

This case highlights the importance of keeping your planning current and regularly reviewing Wills as relationships evolve and change. 

Acknowledgement to Siobhan Rattigan, Senior Lecturer for the College of Will Writing.

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