The Common Law Marriage Myth

When a person dies, the best method for them to be able to dictate who inherits their assets, is to leave a properly prepared Will.

The Will, if drafted correctly, allows the testator to set out their wishes for who will administer the estate, and who will receive the benefit. If someone dies without a Will however, then the rules of intestacy apply – these are directions for how estate assets are to be divided in the absence of the Will and leave it to division between spouse and blood relatives based on the proximity of their relationship to the deceased and value of the estate.

If a person dies intestate leaving a spouse (by marriage or civil partnership) and no children, then that surviving spouse will inherit the whole estate; if they die leaving a spouse and issue (being their biological or adopted children, but not foster or step children), then the spouse is entitled to all the deceased’s personal effects, a statutory legacy of £250,000.00 plus interest and half the residue of the estate – with the surviving issue having the other half of the residue divided equally amongst them.

While this default position may deliver an adequate way to distribute an estate in the classic nuclear family – it presents problems when we consider the distribution of estates where a couple has not been married or had a civil partnership. In this situation the surviving partner is not afforded any recognition under the intestacy rules, and so they inherit nothing. It may be that children of the unmarried couple inherit the entire estate, or if there are no issue – then the estate may go to the deceased’s parents, siblings, half-siblings, grandparents, aunts & uncles, nieces and nephews etcetera - all with the surviving unmarried partner taking no interest in the estate. The crown itself may take the estate where no entitled relatives can be found and still the surviving unmarried partner is left without.

There is a widespread misconception here that the unmarried couples have what is called a “common law marriage”. This is a type of recognition for couples that despite no formal marriage or civil partnership, that their relationship is recognised by the Court due to the length and closeness of their time together. Unfortunately this is a mistake, as England and Wales does not give legal recognition to the relationships of couples without them having had a marriage or civil partnership.

The lack of recognition for these long-term but uncertified relationships means that the couple are not afforded the same protections and benefits as those that are married. Some other countries have, however, made moves to recognise the relationships so that family law, taxation and inheritance laws apply in the same way; examples of this include Australia’s de facto relationships, Israel’s Yeduim Batsibur; the Netherlands’ Samenlevingscontract cohabitation agreements; and recognition of common law marriages in some states of each of Canada and the United States of America.

Because this type of recognition does not exist in England and Wales, it is imperative that couples are aware of the potential impacts on them and take necessary steps to try and limit adverse outcomes. Joint ownership of properties, shares and bank accounts can assist to ensure assets pass to the survivor of the couple – but it is also imperative that a Will be prepared to cover who can act to administer the estate and distribution of any solely owned assets.

In the event that these steps are not taken – it can be necessary for the surviving partner to make a Claim against the deceased’s estate for provision. Under the Inheritance (Provision for Family and Dependants) Act 1975, the partner can make an application to the Court to be provided for from the assets – showing that the deceased did not make reasonable provision for the survivor, and that further provision is needed by them.

These types of Claims though should always be a measure of last resort, not only because of the potential time taken and cost to the estate, but because any provision given to the claimant would be taken from those parties who had inherited under the intestacy. For this reason it is important that the common law marriage myth is no longer promulgated, and that any couple choosing not to get married seek appropriate advice and take steps to limit the potential for detrimental impacts on them.

For more information on this article please contact Ryan Taylor.

020 8290 7785


to chat