Common law myths.
Created | Updated Jan 13, 2004
It's really vital that residents of England and Wales understand that there is no such thing as a 'common law' wife or husband.
The myth is that if you live with somebody as 'husband and wife' for some time (-this varies, some people think 6 months, some people think 5 years) then you are a 'spouse' for legal purposes.
There are many areas where this is important, but perhaps the crucial one is intestacy. The general law of England and Wales allows a person to dispose of their possessions as they choose. (Contrast other countries, for example France, which obliges a citizen to leave real property to his/her children.) However, if a person neglects to make a will, or a will that was made is for some reason invalid, then the intestacy rules will come into effect.
The intestacy rules
There are three 'circumstances':
1 spouse but no other close relative1 survive the deceased
2 spouse and close relative/s2 survive the deceased
3 spouse and children survive the deceased
So, if you're the spouse of the intestate deceased, what can you expect to receive?
Circumstance 1:
The whole of the residuary3 estate passes to you
Circumstance 2:
Everything up to £200,000, plus the personal chattels4 pass to you, plus half the residuary estate
Circumstance 3:
Everything up to £125,000, plus the personal chattels pass to you, plus a life interest5 in half the residuary estate
And if you're a partner, even a lifelong partner, but not the spouse, what then can you expect?
NOTHING.
(This is one reason why gay couples are at a significant disadvantage in being unable to marry. I understand (but disagree) with those people who are opposed to allowing gay marriage; I wonder how many of them have thought about these practical reasons why it is needed.)
So, if you are in a long-term relationship with someone to whom you are not married, you should understand that there are strong practical reasons why you and your partner ought to make sure that you have wills which accurately reflect what you wish to happen to your possessions after your death.6
Exceptions
There are some exceptions to the intestacy rules. These are provided by the Inheritance (Provision for Family and Dependants) Act 1975 ('the Inheritance Act'). Even so, the provisions of this Act primarily benefit spouses and children. But it is hugely helpful to the non-married partner.
The way it works is this. A person dies, and although their estate is not insignificant, insufficient provision has been made (either by the will or, if there is no will, by the intestacy rules) for a spouse or other close relative, or for someone who was maintained by the deceased immediately before death. That person can then make a claim.
The details are complicated, but I'll try to keep things clear.
The primary person to benefit is the spouse. The claimant is entitled to 'reasonable provision', but in the case of anyone other than a spouse this must be based on what is required for their maintenance7. A spouse is entitled to reasonable provision whether required for maintenance or not.
The way this benefits the non-married partner is obvious, but the limitations must be also. Take an example: 2 identical couples, man has a well paid job, so does woman, they each have their own bank account, investments and savings, etc. The woman made a will before meeting the man in which she leaves everything to her brother, and has never changed it. One couple is married, one isn't: the woman dies. The husband can get
whatever it would be reasonable for her to have left him if she had (as it were) thought to re-write a will. The not-husband might not be able to get anything, as his needs are pretty much taken care of anyway.
(Work in progress - more to follow
I(PFD)A
succession, the area of law associated with the disposal of a deceased person's estate.) joint tenants/tenancy in common
1 Close relatives are: parents, siblings, nieces or nephews2See above3Residuary means what's left after prior claims have been satisfied, eg. funeral expenses, debts, etc.4Chattels means, literally, moveable things, usually as opposed to property and cash (comes from the same root as cattle, interestingly...)5What this means is you get to enjoy it as long as you live, but on your death it won't form part of your estate but go direct to the children6If your wishes are simple (everything to my partner, if he/she predeceases me, everything to the kids or their kids, if there aren't any, everything to my brothers and sisters) then you can get forms from WH Smiths which are perfectly OK. If it's even slightly more complicated than that SEE A SOLICITOR.7By maintenance is meant costs of living, accommodation, food, clothes. It will be different for different people; rightly or wrongly what might be considered adequate for someone on low income will be insufficient for the spouse of a wealthy individual.
