Cohabitees and ‘reasonable financial provision’ in law

Cohabitation|February 19th 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.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. D says:

    Until recently some groups were unable in law to marry; they would have been subject to the same issues discussed here. The same sex marriage shakes the situation/argument up (somewhat refreshingly I think). It also negates the gender stereotypes.

    Clearly people will have avoided marriage because of the many implications of marriage.

    Marriage is often heavily defined by the state/society/culture. i.e. a union in the view of the society … and … a god(s)/a collective imaginary friend (depending on belief). It has explicit and specific theological family, personal, property and financial consequences, often defined externally to the couple.

    To draw more parallels with religion there is a marriage delusion. In life there are no guarantees. Neither in theory or practice does marriage actually provide any real guarantees, aside from the financial and legal ones. For starters, it’s not for life, there’s divorce. Which despite the argument marriage should be for life; DOES happen in a non-insignificant number of marriages. People in marriage do engage in infidelity.

    So yes absolutely . “There is a reason some couples choose not to marry – that seems to be the message – and we should respect that.”
    “people who remain in cohabiting relationships with people they love but who will not marry them “… which implies someone is at fault or lacking in love because they don’t want to enter into marriage. Why should people in a society be pushed into an enterprise they don’t believe in? How many unhealthy marriages begin because someone felt they HAD to marry someone?

    On the flip-side it would follow that people who don’t want marriage shouldn’t enter long term relationships. Is that really the best thing of society?

    Co-habiting partners should absolutely, for the sake of both parties, should clearly define (and with help to avoid ambiguity) an agreement between them. And then these agreements respected.

    Personally I wouldn’t want to either arrange matters so I’m dependent or someone is dependent on me at detriment. I don’t want to become sole carer for a child at the expense of a career nor be locked into a career I hate to be mainly a financial provider.

    Absolutely education is key. The common law marriage myth ( why is it still about!?) needs busting once and for all for everyone, with both adult publicity and relationship/social education at school. I’d argue, though and perhaps harshly the law shouldn’t aim to protect competent adults who through lack of foresight, understanding, inaction or coming to clear and sensible arguments end up being disadvantage. Yes protect people disadvantaged by events outside their control but there should be consequences to actions and ignorance. After all ignorance of the law is no defence in law.

  2. Andrew says:

    There are cases where a man – usually – dies and there is just not enough for everyone with a claim; often where there are substantial debts which must – I hope we all agree – come first. In that case I remain if the view that the widow trumps the cohabitee; she was first in time and has the formal commitment. The same applies to an ex-wife if the proceedings were not concluded when the a Grim Reaper adjourned them for good.

    It’s of some importance that 1975 Act proceedings are not family proceedings – see CPR 57.15(2) – and Part 36 and Calderbank offers are available. This makes sense (not that it would not make sense to apply them to family proceedings about money too; it would) because the parties may be non-family beneficiaries under the will – friends or charities.

    It’s interesting also that while adult non-dependent children have the right to claim minor grandchildren don’t – even if they will never be able to earn a living – unless the deceased was maintaining them. Lines have to be drawn somewhere. Personally I would exclude adult non-dependent issue, but others will differ.

  3. Andrew says:

    Let me share my memories of one ’75 Act case. I was acting for one of the beneficiaries under the will of a seriously rich – nine-digit rich – man. He was divorced and had a clean break order which excluded any claim by the ex; the claimant was a former mistress. She had not been maintained by him for some years but claimed she was living on the interest on what he had given her. It was a gold-digging claim.
    And it came to a juddering halt when she wrote to the dead man’s son saying that if he did not agree a generous settlement she would see that the story was all over the tabloids. And he sent her letter back cc her solicitors, his solicitors, and the solicitors to all the other beneficiaries including me, endorsed with the famous answer of the Duke of Wellington to another blackmailer:

    She dropped the case.

  4. Luke says:

    I’ve heard this raised so many times:
    “And for another, what of those people who remain in cohabiting relationships with people they love but who will not marry them?”
    – and it annoys me because the answer is so obvious.

    If marriage is a deal breaker for you because:
    (a) you want the financial security of taking a large part of your partner’s assets if you get divorced or
    (b) ‘your big day’ itself is super important to you or
    (c) you only ‘feel’ right when married or
    any combination of the above or anything else – and the other person doesn’t want to marry you then you KNOW where you stand on that subject.
    If you then decide to stay with that person regardless of the fact that they will not marry you then it is YOUR responsibility.
    If I insist on buying shares in a company after my broker tells me that these shares have certain disadvantages which may make them fall in price should I be able to get my money back if the shares do fall in price ?
    Why is the default position that we infantilize women (although this would apply equally to men) by saying that they can’t think for themselves during relationships ?

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