What Is A Common Law Wife Or Husband?

Legal rights vary depending on whether or not you and your partner are married. Living together is referred to as cohabitation. It is a common misunderstanding that after a couple has been cohabiting for several years, having children together, or obtaining a mortgage together, a couple are considered to be partners in a common law marriage.

According to a Parliament report:

Many couples are under the impression that common law marriage means they will instantly have the same legal rights as couples who are married or in a civil partnership when they will not. The concept of a common law marriage is nothing more than an urban myth and it is important to understand that couples who are not legally married do not have the same rights or responsibilities as those who are.

What’s the difference regarding legal rights between a married couple and a cohabitating couple when someone in the couple dies?

As alluded to above, common law marriages do not have legal recognition in England and Wales. Cohabiting couples are not afforded the same financial protection as married couples, regardless of how long they have been living together. This can cause financial difficulties on separation or death of the partner.

If a couple is married and one of them dies, they may inherit everything from that partner. However, if they are just living together then the surviving partner may not inherit everything or indeed anything. According to the rules of intestacy, a cohabiting partner will not inherit, although it is possible for them to put a claim through Court if they are dependent and satisfy certain criteria. If the person who died made a Will, then the estate is likely to pass in accordance with the terms of it. Similarly, with the deceased’s bank account, a spouse is more likely to gain access than a cohabitee.

Occupation of property not held in joint names may also be problematic upon death, especially if other relatives wish to assert a claim.

However, despite all of the above, getting married is not the only way to provide for the future, there are many other ways. Some of the options are set out below:

Have a cohabitation agreement

A cohabitation agreement is a good way couples can protect their joint finances when living together. The agreement is a legally binding document including details of what each partner is entitled to if the relationship ends. We advise you to seek legal advice before agreeing or signing anything.

Write a Will

Having a Will in place is a good way you can ensure your partner is considered within any inheritance if you die during the course of the relationship. Although this might be a difficult conversation it is worthwhile to ensure your partner has adequate provision and will hopefully reduce the prospect of a contested probate claim later down the line.

Nominate your partner as a beneficiary for your workplace pension savings

For your workplace pension, you can inform your provider whom you would like to benefit if you die before you reach the age to gain access to your pension savings. It is important to note that your nomination will not be legally binding, however, it would be taken into account by the pension scheme administrator.

Comment

The question of cohabitees’ rights is always a lively debate but the law as it stands maintains the distinction between married couples or those in a civil partnership and cohabitees.

If you are living together as cohabitees and considering separation or worried about what will happen to you when your partner dies then you should take independent legal advice as soon as possible in order to establish what your rights and responsibilities are and open a dialogue with your partner leading towards a living together/cohabitation agreement or other mechanism to settle parameters of what your respective shares in the assets will be.