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Timothy Rankin discusses the rights of a cohabitee and the importance of making a will.
People often refer to their long term partners as their “Common Law spouse” and believe that they have rights equivalent to those who are married or have entered into a civil partnership. However, the idea that they have obtained equal rights to those who are married is false. Common law spouses are a social construct with little grounding in law in Northern Ireland as well as England and Wales. The law has in effect not kept up with society in this regard.
If you wish to rely on the law to divide your assets at the end of a relationship and particularly on death, then you must be married or in a civil partnership. It will make little difference if you have a child with your partner although the child may be entitled to receive child maintenance.
If you are living with your partner then you are a cohabitee and you should take steps to protect your rights. For instance if you rent the property but your partner is the only one who is named on the tenancy agreement then you will have very few rights if they ask you to leave. The same is true if your partner owns the property.
One thing that you can do to protect your rights if you are renting a property or sharing it with your partner is to draw up a cohabitation agreement. This can be a relatively simple and inexpensive document which can detail who should receive what if the cohabitation period comes to an end.
Of particular concern is what happens when your partner dies, as without a will you may have few rights to claim under their estate. If the property is held as joint tenants then the property will automatically pass to you and will not form part of their estate to be distributed under the rules of intestacy or under their will.
If the property is in their sole name or if the property is held as tenants in common, then it will form part of their distributable estate and you will have no automatic entitlement to it. You could find that the other half of “your” property is owned by your deceased partner’s next of kin. This can lead to further disputes if this is not who you had envisaged owning the property with.
In Northern Ireland, the surviving partner may be able to apply to Court for provision from the estate of the deceased partner under the Inheritance (Provision for Family and Dependants) (NI) Order 1979. The first test for a cohabitee is that they must be living with the deceased for two years immediately prior to their death, as if they were a husband or wife. The second test is to prove that the surviving partner was dependant upon the deceased partner, but such a claim is limited to maintenance only. In comparison, spouses are not limited to maintenance, and can claim such financial provision as would be reasonable in all the circumstances. Frequently in many modern unmarried relationships, both partners are in full employment, and there could be issues showing true dependency. It should also be pointed out that all of this requires an application to court, which can be uncertain and sometimes costly. Legal advice should be sought as there are other claims that may need to be considered that fall outside of the 1979 Order.
Other countries have started to make changes in this area. For example, in Australia a person can be deemed to be a “De Facto Partner” where they have lived together for two years without separation. They also take other factors into consideration such as how long the relationship has existed, financial dependency and property ownership. Closer to home, in Scotland, the Family Law (Scotland) Act 2006 introduced some basic rights for couples living together.
Any couples who are unmarried but would consider themselves to have a “common law” marriage should make wills, and review the details of their property ownership to ensure that if one of them were to pass away, the survivor is sufficiently well catered for. This may require some awkward conversations to be had, particularly where one partner wishes to leave some assets to blood relatives, but it is better that this conversation is had when they are alive than trying to sort out any issues after they have died.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Private Client team at Cleaver Fulton Rankin for further advice or information.