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Cohabiting – beware the common law myth

Hello and welcome to Blog #4!

This week it’s all about the myth of the common-law-marriage. In 2006 over half of unmarried English couples living together and half the general public believed that the legal position of cohabiting couples was the same as that of married couples. Common-law marriage has not legally existed in England since the 16th century but the recent case of Joy Williams has shown just how prevalent this belief still is.

Ms Williams, 69, lived with dentist Norman Martin for 18 years after he left his wife, Maureen, and their twin daughters in 2004. Mr and Mrs Martin never divorced for reasons of practicality and finance and Mr Martin never updated his Will to reflect his new situation.  In 2009 Ms Williams and Mr Martin purchased a 3 bedroom bungalow in Dorchester, Dorset as Tenants in Common.  This meant that each owned a very specific share of the property and when Mr Martin died of a heart attack in June 2012 all of his estate, including his share of the property he owned with Ms Williams, automatically went to his wife.

Ms Williams, who could not afford to Mrs Martin’s share of the property, found herself in the difficult position of having to consider selling her home. As Mr Martin had never updated his Will or made provisions for Ms Williams, she was able to apply for a “reasonable financial provision” to be made for her out of Mr Martin’s estate. Judge Nigel Gerald at the Central London County Court, who ruled in Ms Williams favour, stated that the “fair and reasonable result” should be that Ms Williams should “retain an absolute interest” in the house she and Mr Martin had shared in a “loving and committed relationship”.  Mrs Martin was also ordered to pay £100,000 towards Ms Williams’ legal fees.  Ms Williams was delighted with the result.  Unsurprisingly, Mrs Martin and her daughters were not and threatened to appeal.

This case has highlighted the need for cohabitation law reforms. In fact, it highlights the need for cohabitation laws period! Although cohabitants do have some legal protection in several areas, cohabitation gives no general legal status to a couple, unlike marriage and civil partnership from which many legal rights and responsibilities flow.  Unmarried couples have no guaranteed rights to ownership of each other’s property if they separate or one cohabitant dies.  This is the case no matter how long they lived together and even if they had children together.

It is therefore important that cohabiting couples look at their legal position and do what they can to protect themselves and each other. They should consider:-

  • Property ownership – will they be owning the property as Joint Tenants or Tenants in Common. Do they want their share to automatically go to their partner upon their passing? Should they enter into a Deed of Trust which reflects one person’s extra contribution or perhaps protects a beneficial interest?
  • Moving into their partner’s property – legally they don’t own the property. Even if they contribute towards the mortgage or invest in increasing the property’s value, it would be difficult to prove they had built up an interest in the property. They should discuss what would happen upon a relationship breakdown.
  • Entering into a Cohabitation Agreement – this would outline who owns the property and how bills are divided. It would show clearly to the Court that both parties had thought about how they own their assets and how they wanted them to be dealt with.
  • Preparing and updating Wills – everyone should have a Will and review it regularly to ensure it reflects their wishes, especially if their relationships of circumstances change.

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