The Myth of “De facto Marriage” – Family and Marriage



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Our lawyer in the Private Client team, Elizabeth Pearson, reviews the law surrounding the cohabitation provision in the event of death.

“But we’re husband and wife in a common-law relationship… aren’t we?” Unfortunately, there is no such thing.

Although cohabiting couples are widely regarded as the ‘fastest growing type of family in the UK’, the law in England regarding the protection of cohabitants in the event of death lags far behind what most people do. would expect it to be. We are often contacted by people who mistakenly believe that the law will protect those in long-term relationships, who live together “as a common-law husband and wife.” However, the reality is that the only way to be sure that your partner will inherit anything when you die is to have a valid will in place.

What happens if there is no will?

If a partner of a cohabiting couple dies without a will, his succession will pass under the regime of intestate succession. These rules establish an “order of precedence” in the law as to who should receive the estate of the deceased. When a couple is not married, all children will be at the top of this list, but if there are no children, the law pushes its way through a list of blood relatives, including including parents, siblings, nephews / nieces and beyond. Unmarried partners are not at all in the list of family members who inherit under the rules of the intestate.

Minimum protection is offered to cohabitants under the Inheritance Act 1975 (Provision for Family and Dependents) (the “1975 Act”). The 1975 law enumerates those who could expect to receive a “reasonable financial provision” upon the death of an individual, and allows them to make a claim against an estate if they are not, either by will or by will. the rules of intestate succession.

A partner who has been living with the deceased for at least 2 years before his death can claim a financial provision claim under the 1975 law. The court will then determine whether there has been a failure to make reasonable financial arrangements from the start. of the deceased’s estate, which would be reasonable for the maintenance of this unmarried partner. However, the court has discretion to decide what provision is made from the estate, if any, and the process can be costly and time consuming.

It should be noted that some assets could be passed on to a surviving partner without a will. If a couple owns a property together or has joint bank accounts, those assets
could automatically pass to the surviving owner. However, the position should be carefully considered to ensure that this will be the case, as not all properties, in particular, are jointly owned in this way. Even if they are owned in this way, if the couple has wishes about how other family members (especially children) will benefit from these assets as well, care should be taken to ensure that they are owned. in a way that allows it.

The simple solution to avoiding this uncertainty is to take the proper advice and put together a will. This allows both partners to have control over where their property will be passed on upon their death and can give them the peace of mind that arrangements will be made for their loved ones.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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