Cohabiting? Thinking of Cohabiting? Then read on…

During February the national press was awash with articles highlighting the case of 69 year old Joy Williams and fresh calls for the reform of Cohabitation laws. It coincided with the House of Commons Library publishing a briefing paper “Common law marriage and cohabitation” setting out the current position of the law and fact that the Law Commissions recommendations in 2007 had remained “shelved”.

Ms Williams had lived with her partner Norman Martin for 18 years and jointly owned a three bedroom property in Dorchester which was valued at about £325,000. They had purchased the property jointly in 2009 as tenants in common, which meant that upon death the individual’s share would not automatically pass to the survivor.

Sadly Mr Martin died of a heart attack in 2012. At the time of death Mr Martin was still legally married to Mrs Maureen Martin. The former dentist had not instigated divorce proceedings nor had he updated his will following his decision to leave the marriage and live with Ms Williams. Therefore in accordance with the law, his estate, which included his share of the house, was to pass to Mrs Martin.

Ms Williams brought a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 saying that Mr Martin’s half share in the house should be transferred to her and not form part of the estate. She was to demonstrate that they had lived together for a period in excess of two years and that she was either wholly or partly dependent upon him. In contrast, Mrs Martin, aged 73, argued that she was not estranged from her husband and he was not maintaining Ms Williams.

In a judgment which lasted four hours, Judge Nigel Gerald at the Central County Court in London found that Ms Williams and Mr Martin had lived together as though husband and wife in a loving and committed relationship and provided for Ms Williams to retain the half interest. He also ordered that Mrs Martin pay £100,000 on account of costs within 42 days. Mrs Martin’s advisors said this was a staggering amount which she could not afford and would be considering an appeal.

Analysis

There were many ways in which this case could have been avoided. Perhaps the cheapest and most simple option would have been to register the property in joint names as beneficial joint tenants so that upon Mr Martin’s death his share of the property would have automatically passed to Ms Williams, as it would have fallen outside of his estate. This would have been included in the original cost of the conveyancing at the time of purchase.

The next option would have been for Mr Martin to have updated his will. This could have provided for Ms Williams, either by leaving his share in the property to her or specifying his wishes as to his estate in light of his separation from Mrs Martin.

Had Mr Martin commenced divorce proceedings, then a final financial order would have been made which would (upon Decree Absolute) been a final settlement between himself and Mrs Martin. The Decree Absolute would have revoked provision for his wife in his will. However, this may have meant that his estate would have been left to his twin daughters and same the problem may have still arisen in relation to Ms Williams on the basis that he had not updated his will.

Advice

When deciding to live together couples need to have frank conversations regarding financial issues and document their intentions. There is no such thing as a common law husband or wife! Do not rely upon a myth to protect you.

Ask about your partner’s status – are they married? Consider the implications of that. If moving into a property owned by a partner, how is it owned by them? Consider what will happen upon separation or, even worse, their death.

If you are making a financial contribution into a property owned by your partner, ensure that you spend some of that money getting proper legal advice and documentation to prove the investment and your respective intentions, in order to protect you in the future in the event of a separation or death.

There will always be excuses as to why a cohabitation agreement is not drawn up (usually financial constraints) or perhaps with a married partner not being able to divorce due to costs, but in a committed and loving relationship it would be hoped that a sensible “what if?” conversation could be had and appropriate provision made.

Comment

I have found in the past year an increasing number of married clients who have instructed me where they have been separated for many years but have done nothing about it formally. Whilst many will have separated their financial positions in terms of capital assets, many others have not. Many of these clients have formed new relationships and are living unaware of the problems that may be caused by a sudden death and not having made up to date provision for current partners. A pension can be a hugely valuable asset within a divorce case and, unless specific nominations have been made, will be payable to a spouse upon death as opposed to a new partner. I have recently been asked to try and rush through a divorce where the parties separated over 15 years ago and resolved their capital issues at the time, but agreed to leave pension claims open (to see how the pension sharing legislation worked out) but then moved in with new partners and forgot about it. The husband has just been diagnosed with a terminal illness and having spoken to the pension trustees has found that he cannot leave his pension to his new (younger) partner, due to their rules on paying funds out to a spouse only.

Will the law be reformed anytime soon? I suggest not, despite the increasing number of people living as cohabitants, changing the law to provide rights of cohabitants is not a vote winner and further there are many ways in which an individual can secure their own position such as ensuring property interests are recorded or ensuring up to date wills are completed.

If any of the above circumstances affect you and you would like advice then please email mark.sage@tltsolicitors.com or call 0333 0060847.

 

 

 

 

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About marksageblogs

A divorce lawyer, a husband and father of two daughters. A cricket captain and Southampton football fan. A specialist in advising UK expat couples about separation and divorce.
This entry was posted in Cohabitation, Family Law, Joint ownership and tagged , , . Bookmark the permalink.

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