Why I won’t be saying “I do”

A recent article in Essentials Magazine entitled – “Why I won’t be saying I do” in which the article’s author Tamar Cohen expresses her views on marriage prompted a response from Ridley & Hall partner Sarah Young, a solicitor who specialises in disputed Wills cases. Whilst the article concentrates on the numbers of marriages ending in divorce, whether parents being married is important to children and whether some people just might prefer to avoid the wedding day event, the attention to legal and financial implications was perhaps understated as Sarah Young explains:

“I felt that I had to write in response to the article “Why I won’t be saying I Do” in Essentials Magazine April issue.  Tamar Cohen refers to couples getting hitched “often for practical reasons like pensions or tax”. As a solicitor specialising in Will disputes I was concerned that your readers might think that nowadays it doesn’t really make much difference whether you’re married or not, as far as your legal and financial position is concerned.

Unfortunately, that is not true.  There is no such thing as a ‘common law’ wife or husband; if you’re living with someone and your unmarried partner dies then your legal rights are much more limited than if you were married. A deceased’s estate passes in accordance with their Will or intestacy. If the family home is in joint names that is often not a problem (because usually the house goes automatically to the surviving partner), but any other assets and liabilities go into the deceased’s estate. As most people (two thirds) don’t make a Will – and many of them are out of date anyway – the problem is that often the Will or the intestacy leaves an unmarried partner with nothing at all.

At the moment, this could mean that a surviving partner (no matter how long the cohabitation has lasted) can be left penniless on their partner’s death.  The Inheritance Act 1975 does provide a safety net –  it is possible to make an application to court if you are the unmarried partner of someone who has died who hasn’t made reasonable financial provision for you, but this can be complicated and expensive and it usually has to be done within six months of a Grant of Probate being taken out, so just at the time that someone has been bereaved is feeling at their most vulnerable. I had a case where my client, in her nineties, had lived with her partner for over 50 years. But because the house was in his name, his family tried to kick her out of the house the day after he died!

I have dealt with many tragic cases, especially those involving a sudden death. Inheritance Act cases can involve mothers having to sue their own children, or the deceased’s children from a previous relationship (as they are often the next of kin in an intestacy situation). This can just add to the trauma of the whole situation for a surviving partner.

Legal Aid used to be available for these cases but was abolished by the government in April 2013.

The legal horrors do not stop there; if you and your partner separate then, again, you have far fewer rights as a cohabitee than you do as a spouse.  You have no right to claim financial provision. Say that the property you live in is in your partner’s sole name, but you have contributed to the mortgage and/or building works over the years.  You would have to go to court to argue that a trust had arisen as a result of your contributions and that it had always been intended that you should have a share of the property, but that can be difficult to prove. Women are especially at risk as they are more likely to stay at home to bring up the children and miss out on the opportunity to earn money.

It is not that I am suggesting that everyone should get married!  But anyone who is cohabiting, or thinking about cohabiting, needs to do it with their eyes wide open and be aware of the legal and financial implications for them and any children they may have if their partner dies or they should split up.

It is possible (though I accept not particularly romantic!) to have a cohabitation agreement. Any property should be held in a way that makes it clear as to who owns what.  Everyone should make a Will and review it regularly.

Sometimes disputes are inevitable, but I very much wish that I didn’t have to get involved in cases where just a little bit of pre-planning and open communication could have avoided a huge amount of heartache and expense.  No one likes to think about their death or relationship breakdown, but we’re letting them down if we don’t have these conversations with our families and loved ones.

For further advice, please contact Sarah Young on 0843 289 4640.