Cohabitees and ‘reasonable financial provision’ in law
By:4 commentsFebruary 19, 2016
Earlier this week we read about the case of Joy Williams. This 69 year-old resident of Dorchester in Devon generated headlines by winning the right to her deceased partner’s share of their home despite the fact that they had never married and he had not updated his will at the time he fell victim to a heart attack.
By that point, the couple had been living together for as long as 18 years, owning their property as ‘tenants in common’, a form of ownership which does not allow one party to inherit from the other.
Not only had Joy and her partner Norman never married, but he was in fact still married to his estranged wife Maureen throughout his time with Joy. So when he died the wife, not Joy, became his legal heir.
When she heard that Maureen Martin planned to sell her share of the property, Joy took to the courts because she could not afford to buy Norman’s share and feared losing her home.
And she has succeeded. A judge declared it “fair and reasonable” that she be given full ownership because she and Mr Martin had lived there in a relationship equivalent in all but legal status to marriage.
After the ruling, an obviously relieved Joy made the telling comment that she had found it “traumatic” to discover that “this level of serious relationship is not currently recognised by the law” and that she would therefore have to go to court to secure her home.
Of course Ms Williams is far from the first cohabitee to misunderstand their legal situation in this country – and by ‘country’, I do of course mean ‘England and Wales’. Scotland has its own system of law – something often forgotten – and it is one which, since 2006, has awarded limited property rights to those who choose to live together without marrying.
But down here south of the border, the myth of the ‘common law marriage’ has proved a peculiarly stubborn one. The simple truth is that, in normal circumstances, cohabitees have no clearly defined legal rights to financial provision if their partner leaves them – even after decades – and no right to inherit if their partner dies.
Of course, for some, this lack of provision is the whole point of not getting married. Whenever I raise the prospect of property rights for cohabitants on this blog, I am accused by some of our regular readers of wanting to introduce marriage by the back door for such couples. There is a reason some couples choose not to marry – that seems to be the message – and we should respect that.
But I believe that that stance oversimplifies a complex situation. For one thing, if they were ever to be introduced, property rights for cohabitants would certainly not be the equivalent of the financial and legal rights bestowed by marriage. And for another, what of those people who remain in cohabiting relationships with people they love but who will not marry them? And what of those who find themselves in Ms Williams’ position – suddenly vulnerable and alone – through bereavement as in her case, or abandonment by a suddenly uncaring partner unwilling to acknowledge the reality of their relationship?
Of course, Ms Williams’ story has had a relatively happy ending – although that situation could change again of course if an appeal is made. So how did she do it? In fact, it is not entirely true to say that cohabitants in England and Wales have no rights at all. The law does recognise the plight of some partners, in some circumstances. This case was based on a piece of legislation from 1975: the Inheritance (Provision for Family and Dependants) Act. I would go so far as to say that is a textbook example of the use of that particular act. Ironically the law protects cohabitants on the death of one party in a way it does not on separation.
As the name suggests, it governs provision for family members and ‘dependents’ from a deceased person’s estate. Under section 1(1A), such dependents can include people who
“…during the whole of the period of two years ending immediately before the date when the deceased died, the person was living—
(a)in the same household as the deceased, and
(b)as the husband or wife of the deceased.”
That applies to someone in Ms Williams’ position. The Act states that they – as well as spouses, former spouses, children, or people treated by the person who died as their child – can apply to the courts:
“…on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy [if they had no valid will], or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.”
Nevertheless, unless and until the law changes in England and Wales (and we could be waiting a long time for that day), I would certainly echo Ms Williams’ advice to the many other people living with partners to whom they are not married. She told The Guardian:
“I hope my situation raises awareness for others to consider their own financial position in relation to their partner and consider whether they need to take advice to protect their each other in future.”
It is essential to make a will and remember that the inheritance tax breaks available to married couples do not apply to cohabitants no matter how long they have lived together. While the principle of marriage may seem unattractive to settled cohabitants, the law ultimately will be applied and the tax breaks alone may well make marriage worthwhile.
In this case a great deal of angst and a huge legal bill could have been avoided had the couple altered their property purchase arrangements so that as joint tenants their share would automatically pass to the other. Of course they could also have married and both made wills.
The fact that they did not does make me wonder what was really at the back of Mr Martin’s mind. Had he chosen to be the proverbial ostrich with his head in the sand, or did the couple simply not understand the law?
Whatever it was, readers in similar positions might want to take informed legal and tax advice and then decide on the best course of action.
Photo by Lloyd Morgan via Flickr
February 19, 2016
Categories: Cohabiting Couples