I wanted to put my last post, about the Centre for Social Justice’s plans for cohabiting couples, into a factual and legal context. The couple I am about to describe never gave a thought to the nightmare “what if” scenario that exists for modern day cohabitants. Their experience is a salutary example to the millions of other couples who are “non-people” in the eyes of the law because they are not married.

The case, Webster v Webster (2009) 1FLR 1240 was heard on 13 January 2009 before His Honour Judge Behrens in my home city of Leeds.

I have decided to write about it precisely because it is an “everyday” case, not a glamorous one at all. The facts are unremarkable. The man and woman lived together for 27 years and had two children. Their family home was registered in the man’s name only. The man also had three children from a previous marriage.

Like most couples, both parties worked. He earned far more than she did, but both contributed fully to the household expenses. Then, aged 54, the man unexpectedly and suddenly died from a heart attack. He died ‘intestate’, meaning that he left no will.

For the woman this was a disaster – not only emotionally, but also legally. Had she been his wife she would have been entitled to inherit her share of the estate, automatically under the intestacy laws. (Please note that there is no substitute for making a will – see below.)

She discovered that as an unmarried cohabitant, she was not automatically entitled to anything. Because he left no will and was not married, his partner was not his next of kin. Therefore, nothing passed to her in law. Instead, the man’s next of kin in law were his five children. 

What could the woman do? There followed distressing and ruinously expensive contested litigation in the Chancery Division, which included consideration of her intimate relationship with the man and an action against her own children. Her lawyers tried to persuade the court that under property law, she had acquired a joint interest in the family home. All her efforts failed. The judge found there was never a common intention that the property should be held jointly.

If this litigation had taken place while the man was still alive – if, say, the relationship had broken down – that would probably have been an end of it for the woman. In such a case, the court held that she might have acquired some interest in the family home, not 50 per cent but perhaps between 33 to 40 per cent. After 27 years of devoted companionship, bearing two children, working throughout with only a short break to care for the children while they were young, and contributing all her earnings to the family, she would have been left with – not a great deal. She would have had no ongoing maintenance, and no realistic opportunity to reestablish herself on the housing market.

I am sorry to say that this how the Government and the Conservative Party intend to leave the law for millions of cohabiting couples and their families. They condemn (in this case) the woman who loyally and lovingly sticks with her man, through thick and thin, even though he won’t marry.  These women are ordinary, everyday people, suffering substantial injustice because in the eyes of the law they and their children simply don’t exist. They deserve better; they are the backbones of their families.

The bitter irony in the case of Webster v Webster is that the woman had far less legal recourse during her partner’s lifetime, than she did after his death. Bizarrely, current law does recognise a cohabitant’s dependency claim upon the death of the other partner.

 Under the Inheritance Provision for Family and Dependents Act 1975 the court was able to make provision for her, as a dependent of the man. The court found that she was about £15,000 per annum worse off with the loss of the man’s income. It applied the Duxbury Tables and calculated that the value of the family home, once the mortgage had been repaid, was equivalent to the woman’s loss of £15,000 per annum, for life. So the court ordered the estate to pay off the outstanding mortgage and transfer the family home to the woman outright.. 

Managing risk: what should cohabitants do?

If they do not wish (or cannot) confer upon themselves the legal rights and protection afforded by marriage/civil partnership, cohabitants should take steps to ensure that their partners will be provided for, should anything unexpected happen.

Here’s the checklist:

• 1. Decide how property and assets should be owned, and draw up a cohabitation agreement. Consult a solicitor, to ensure that the agreement is given full legal effect. As Ms Webster discovered, raising arguments about what may or may not have been agreed years before is unlikely to sway the court without the clearest evidence in support.
• 2. Make a will. (This applies to everyone, – not just cohabitants.)Take all your dependents fully into account. If you do not ensure that the provision you make is fair for them, they could contest the will.
• 3. Insure your life. This is especially important if you are a financial provider and have dependents and/or debts. But beware: in one case in which I was recently instructed, a company director insured his life so that the other directors would be able to pay out his share to partner, in the event of his death. He died unexpectedly; unfortunately, the value of his shareholding in the company was almost worthless at the time. The directors therefore kept the payout entirely for themselves; the partner received nothing.

Photo credit: BOBDOGidaho.