Legalese

“Common Law” wife; you think you know your rights? READ ON!

Our legal expert Julie-Ann Burger, Solicitor, Mediator and Collaborative Practitioner, will be available for a chat on Facebook very soon.

If you wish to ask her any questions please read our updates on http://www.facebook.com/BerkshireWoman. We will post the exact date and time when Julie-Ann will be available to answer your questions and give advice.

It is a commonly held belief that a woman acquires rights simply by the fact of cohabitation. As the law stands at present, this is not correct. No matter how long you live with your partner, be they male or female, you will have no automatic claim against them on separation, nor will you acquire any rights in respect of their property. Compare this to the situation of a married woman or a party to a civil partnership, and you will see their situation is very different.

It is perhaps easier to see the differences if we look at a simplistic example:

Let us imagine Jackie has been living with Jeremy for ten years, and they have two children, Nicola and James. They live in a house in Jeremy’s sole name that he purchased before they met. Jackie has stayed at home to look after the children, having given up work early in her career, and thus has no income nor any pension provision in her own right.

If they decide to separate, what claims might Jackie have against Jeremy in this situation? Well, whilst she will be entitled to child support for Nicola and James, she has no right to any maintenance for herself. Child support is calculated according to a formula and is wholly dependent on Jeremy’s income rather than Jackie’s needs. Furthermore, any child support will stop when the children reach a certain age. By contrast, if she and Jeremy had been married there is the possibility of Jackie receiving “spousal maintenance,” determined taking into account a number of factors including the length of the relationship, the standard of living that the parties enjoyed, and even the potential career that Jackie had given up to look after the children.

What about the property in which they live? Does Jackie have any claims? Well, again, she has no automatic claim to such and indeed Jeremy has no obligation to provide her with any housing. If she has made any financial contribution to the purchase of the property she may be able to show that she has any interest in such, but in this example Jackie has not been working so has not had the opportunity to do so.

There is provision under the Children Act 1989, for property claims to be made on behalf of children, but the Orders generated by such claims do not give anywhere near the same security as the type of Orders we see regularly in divorce situations.

If Jackie and Jeremy had both owned the property the situation for her would be rosier. She would be entitled to her share of that property, which should have been defined at the date of purchase in a Deed of Trust. She will not, however, be entitled to any more than that share, even if such is insufficient to re-house her and the children. In the absence of a Deed or declaration of Trust, there is a presumption that they each own one half of the property, but this can be overturned, and whilst the law has recently be clarified to a degree, by the Supreme Court case of Jones v Kernott, Jackie should have resolved this issue when the house was purchased.

We also know that Jackie has no pension scheme. Can she claim a share of Jeremy’s? You will probably have worked out that the answer to that is a resounding no. Orders to share pensions can only be made ancillary to divorce proceedings.

So things are looking pretty grim for Jackie in the event that she and Jeremy split up.
Unfortunately the future would look even bleaker if Jeremy were to die suddenly. One would hope that they would have both made Wills, as should we all. Such save a great deal of heartache and worry at a difficult time for those left behind, and means we can ensure we make provision for loved ones. There will be many of us who have not managed to get around to such, I am sure. For cohabiting couples this could be potentially disastrous. In the scenario we have been considering, where the property is in Jeremy’s sole name, if he has not made a Will by the date of his death, Jackie would inherit nothing from his estate, as the law simply does not recognise any legal status in their relationship. Nicola and James would do so as his surviving children, but not their Mother.

Gavel

The situation would again be different if Jackie were a co-owner of the property, but even that would not necessarily ensure that Jackie is secure. As I mentioned earlier if Jackie and Jeremy jointly owned the property, they would probably do so in specifically defined shares, set out in the Deed of Trust. These shares will pass under a Will or if there is no Will, under Rules of Intestacy. In this latter instance Jackie loses out again as she is not an automatic beneficiary under the Rules. Only in the event that the property is held as “joint tenants” would it automatically vest in her on Jeremy’s death. To protect Jackie therefore, Jeremy needs to make a Will.

So we could find Jackie, on Jeremy’s demise, without any property and devoid of any income. Often in this situation Jeremy’s salary package would include provision for “Death in Service” benefit but it is debatable whether such benefit would pay out to a dependant partner who is not a spouse or civil partner, and indeed it is unlikely. There may however be provision for his dependent children. The only way we could protect Jackie and the children in this situation would be to ensure that there is separate life cover available for her to provide some capital or income in the event of Jeremy’s death.

All is not lost for Jackie as she could argue that she has a claim under the Inheritance (Provision for Family and Dependants) Act 1975 as someone who was maintained by the deceased, and has not received financial provision from the estate. However, such a claim would be potentially costly, and could so easily be avoided by the simple act of making a Will.

So what of Nicola and James in all this? Well, we know that they would continue to be supported financially if Jackie and Jeremy were to separate, albeit potentially in more modest accommodation than they might if their parents had been married. They will also be provided for on their father’s death even if he has no Will, by provisions under the Rules of Intestacy. The law is not concerned whether children are the off-spring of married or co-habiting couples when considering whether they will inherit their parent’s estate. Both children born within a marriage or outside such, are able to inherit in the same fashion.

So perhaps there are a number of disadvantages to the unprepared cohabitant, but of course if parties enter a relationship in the full knowledge of how the law stands with regard to their relationship, they can easily take steps to protect themselves, by regulating both their property and the devolution of their estate, and with the assistance of financial advice, provide for each other in the event of death.

By Julie-Ann Burger
Solicitor, Mediator and Collaborative Practitioner

Disclaimer; this article is for information only and cannot be relied upon as providing legal advice. You should obtain your own independent legal advice on the issues contained herein.

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