No such thing as common law spouse
I see more and more clients who are choosing to live together rather than marry. The reasons are many and varied, but it worries me that they take such a big step without really understanding that even living together can have legal consequences.
If you live together- even for many years- but don’t make a Will, you are placing your partner in an awful position if you die. There is no such thing as a Common Law Marriage. The law simply doesn’t allow them to inherit from you without a fuss- your estate will go to your family and they will have the responsibility of dealing with it. That’s how the intestacy laws work- but they were created at a time when most people didn’t co-habit.
This means that your partner- who may well be left trying to cope with life and your children- is very likely to have to bring a legal claim against your estate for what the law calls “Reasonable Provision”. If you have children- then they will be claiming against their own children!
Only assets that you both own as “joint tenants” will pass to your partner- for example, a bank account that has both your names on it. These assets might include your house- but in my experience, it’s often the case that they don’t, because of how cohabiting couples tend to own property. So you can end up in a position that means your partner has to pay the mortgage on a property where they don’t even have full control of it!
And there are no Inheritance Tax exemptions for co-habiting couples either like there are for spouses. Not that I think you should consider getting married as a tax planning exercise!
Even if you separate from cohabiting the position is risky. If you have paid into the household budget, but live in your partner’s home and then you split up- you will have no rights in that house without making a legal claim, even if your money effectively helped your partner pay the mortgage.
You would have to bring an action to demonstrate that some form of trust existed, or that it would be so unfair to you that the law ought to give you some of the house value. Bringing a claim like this is so expensive most people don’t bother. If you have children then some form of provision might be made, but this would end as they reached 18, so it won’t protect you in the long term.
Cohabiting couples actually need more legal help- not less- than couples who marry. Wills, Cohabitation Agreements and Declarations of Trust can all be used to put the right structure in place so that you plan and protect yourself, your partner and your family for the future.