More than 3 million couples in the UK choose to cohabit, rather than marry or enter a civil partnership and I am continually surprised by the number of people who still believe that the concept of 'common law husband and wife' exists and somehow provides them with legal rights and protection.

To be absolutely clear, there is no concept in England and Wales of the 'common law husband and wife', irrespective of whether you have children together or how long you have lived together. If you are not legally married, the law classifies you as cohabitants and the fact is, you are potentially at a significant disadvantage on separation or indeed when one of you dies, as compared with married couples or those in a civil partnership.

If you live together, rather than marrying or entering a civil partnership, you have:

  • No automatic rights to your partner's property on their death.
  • No automatic entitlement to inherit their estate, even if you have children together, unless there is a Will in place.
  • No tax reliefs and exemptions that spouses and civil partners enjoy, including pensions.

On death, as a cohabitant, if your partner has died without making a Will, the Intestacy Rules will apply. In essence this means that:

  1. If your partner had previously been married and had not divorced, and his/her estate was worth less than £250,000 the surviving spouse would inherit everything, even though they may have separated years before.
  2. If your partner had previously been married and had not divorced and they had no children but the estate was worth more than £250,000 the surviving spouse would inherit it all.
  3. If your partner had previously been married and had not divorced and the estate was worth more than £250,000 but they had children, then the first £250,000 plus personal possessions would go to the surviving spouse. The remainder of the estate would be divided in half, with half going straight to the surviving spouse and the other half being divided between surviving children.
  4. If your partner had not been married previously but had children, the children would inherit everything.
  5. If your partner had not been married and had no children, surviving relatives would inherit in the following order:
    1. Parents
    2. Brothers or sisters or their children (or children's children etc.)
    3. Half brothers or sisters or their children (or children's children)
    4. Grandparents
    5. Uncles or aunts (brothers and sisters of the whole blood of a parent) or their children (or children's children)
    6. Uncles or aunts (brothers and sisters of the half blood of a parent) or their children (or children's children etc.)

What is clear is that the Intestacy Rules do not recognise unmarried 'common law' partners. So what should you do. Well, the starting point has got to be to ensure that you and your partner have up-to-date Wills, which reflect how you wish your estates to be distributed on your death. There is no substitute for ensuring these are regularly reviewed and updated, particularly on any change in circumstance. The other consideration is whether you should have a cohabitation agreement. These are increasingly common place and are a useful way to set out how your assets should be divided should you separate. The agreements can also record contributions made to the purchase of assets as well as set out who is responsible for paying what. Whilst cohabitation agreements may not be the most romantic thing in the world, they can save a lot of time, energy, cost and heartache should anything go wrong in the future.

A recent case which went before the Central London County Court on 16 February 2016 concerns a claim under the Inheritance (Provision for Family and Dependents) Act 1975 brought by cohabiting partner Joy Williams. The facts of the case are likely to be similar to many couples up and down the country.

Joy Williams and Norman Martin had lived together for 18 years, but Martin had failed to update his Will to reflect his relationship with Joy during that time. Martin had also never divorced his wife Maureen Martin, despite having been separated for many years.

Joy and Norman bought their three-bedroom house together in 2009 as tenants in common, which meant that his share of it was not automatically transferred to Joy when he died of a heart attack in 2012.

Under the terms of Norman's Will his estate passed to his wife. Accordingly, as she was at risk of losing her family home Joy made a claim against Norman's estate on the grounds that her security and future were in jeopardy.

Judge Nigel Gerald, found in favour of Joy and said the 'fair and reasonable result' was that she should 'retain an absolute interest' in the house she and Norman had shared in a 'loving and committed' relationship. The judge said it was 'quite plain' that Joy and Norman had in 'all material respects' lived as husband and wife in a way 'in which they expected to spend the rest of their lives'.

Maureen Martin, not only lost the case but was ordered to pay £100,000 in costs. She has however, indicated that she intends to appeal the decision.  

Whilst the law remains as it is, this case reinforces the need for cohabiting couples to plan for what would happen in the event that they should separate or one may person may die. Although Joy was successful in her claim, being embroiled in lengthy litigation is by no means the ideal way to resolve matters. Each case is very fact specific and this case certainly does not mean cohabiting couples will always be successful in the future.

There are plans for reform of the law in England and Wales, in the form of the Cohabitation Rights Bill which is currently progressing through parliament. If it is passed it will offer basic protection to long-term cohabitees. In the meantime, ensure you have a valid Will and consider entering into a Cohabitation Agreement to protect yourself should the worst happen.