Common Law Marriages & Inheritance – The rights of cohabiting partners
Released On 21st Jan 2023
Recent figures have indicated that, with over 3.5 million partners currently cohabitating in the UK, cohabiting (i.e. unmarried) Partners are the fastest growing type of family. However, that is despite the fact that cohabiting Partners have very little legal protection, both on the breakdown of a relationship and the death of their partner.
You can read more about cohabiting couples, What is Common Law Marriage and The Myth of Common Law Marriage on our previous blog posts.
After a consultation, in August 2022 the Women and Equalities Committee called for reform to family law to better protect cohabiting couples and their children from financial hardship in the event of separation. The Government have recently published their response to the Committee’s report, rejecting many of the proposed reforms to cohabitation law.
Recognising the current risk of significant financial vulnerability for cohabitants, the Women and Equalities Committee authored a report, calling for reform of Family Law in England and Wales. The proposals in the report included:
(i) The immediate Implementation of the Law Commission’s 2011 proposals concerning intestacy and family provision claims for cohabiting partners. These proposals provided for cohabiting Partners who had lived together for five (5) years (two (2) years if they had a child together who was living with the couple when the Deceased Partner died) the right to inherit after each other’s death under the Rules of Intestacy and recommended that a surviving cohabiting Partner who had a child with the Deceased should be able to make a Claim under the Inheritance (Provision for Family and Dependents) Act 1975 even if the relationship had lasted for a shorter period than two (2) years; and
(ii) A review of the Inheritance Tax regime so it is the same for cohabiting Partners as it is for married couples and Civil Partners. Government response to the committee report
The Government, unfortunately have rejected these proposals, and have only partially accepted two (2) much less significant recommendations made, which seek to increase public awareness as to the legal distinctions between getting married, forming a Civil Partnership, or choosing to live together as cohabiting Partners, including increased awareness as to the implication of a religious-only marriage.
The Government’s response is seen as extremely disappointing by many practitioners, seemingly based upon the view that the existing work on marriage and divorce laws must be completed first, before any changes are made to cohabitation laws.
Caroline Nokes, the Chair of The Women and Equalities Committee said that the Government’s rejection of the proposals rely on “flawed logic” and “risks leaving a growing number of cohabitants and children vulnerable”.
What options are there to cohabiting partners?
In light of the same, the only real option available to cohabitees on the death of a Partner is to pursue a Claim against the Deceased Partner’s Estate under the Inheritance (Provision for Family and Dependants) Act 1975.
This is a Claim for “reasonable financial provision” from the Deceased Partner’s Estate, but is limited to what is required for the surviving Partner’s “maintenance needs”. It is not, therefore, for what may be considered as “reasonable” or “fair”, or necessarily reflecting the nature or duration of the relationship.
We can help you
If your Partner has passed away and you do not stand to benefit from their Estate, or a loved one has passed away and a dispute has arisen with their Partner over their Estate, contact us. Our Contested Wills, Trusts and Estates Team is here for you on 01823 625841.
We handle a variety of disputes and issues surrounding Wills, Estates and Claims under the Inheritance (Provision for Family and Dependants) Act 1975. Further, we can offer high quality, cost-effective legal advice on such matters.