Thousands of Families at Risk amidst Common Law Marriage Confusion

9th August 2019

Leading Probate Law experts from national law firm Simpson Millar have today urged non-married couples to ensure that they have Wills in place to protect themselves in the instance of a bereavement after recent statistics showed that cohabiting couples are the fastest growing family type in the UK.

Wills, Trusts and Probate experts at the firm went on to call on the Government to push through a Bill that would give cohabiting couples who have lived together for more than three years, or who have dependents, similar rights to married couples.

The call to action comes amidst concerns that many people still wrongly believe that "common-law marriage" laws exist when dividing up finances following the death of a partner, or in the event of a divorce.

A misconception that could leave thousands of families at risk under current legislation which does not afford unmarried couples the same protection as married couples.

New statistics released by the Office for National Statistics revealed that the number of cohabiting couple families is continuing to grow faster than married couple and lone-parent families, with an increase from 2.7 million to 3.4 million (over 25.8%) over the decade 2008 to 2018.

Charles Wilson, a Court of Protection, Wills and Probate Senior Solicitor at Simpson Millar, said the latest ONS statistics demonstrated the increasing need for cohabitating couples to have financial redress in the same way that married couples do – especially in cases of bereavement.

He said, “The truth of the matter is as the current law stands even if you’ve been with your partner for 10 years and have a child together unless you are married - or have a robust Will in place - you have very limited rights in the event of their death.

“Not only would this be a very difficult time, but you’d then also have to go through the costly and emotionally draining process of Probate to try and recover what you’re entitled to.”

Charles went on to explain that The Cohabitation Rights Bill - which had its second reading in the House of Lords on 15th March 2019 – would provide some ‘much-needed protection’ to those affected, but that until it was passed people remained vulnerable.

He said, “The proposed Cohabitation Bill would apply to those cohabiting couples who either had a dependent child or who had been living together as a couple for a minimum of three years, and would provide the right for either cohabitant - upon the breakdown of the relationship or in the case of a death - to apply to a Court for a financial settlement order to redress a financial benefit or an economic disadvantage resulting from the period of cohabitation.

“The Bill would also provide the right for cohabitants to opt-out of the financial settlement provisions if they both agreed, and provide cohabitants with the right to succeed to their partner’s estate under the Intestacy Rules, and the right to have an insurable interest in the life of their partner, similar to the rights of married and civil partnered couples.

“The Bill applies some much-needed common sense to what is an outdated and archaic law, and many couples still remain in the dark about their rights following the breakdown of their relationship, or if one party dies.

“Given the DNA of Britain’s families in this day and age this seems like a sensible step in the right direction, and the sooner the Bill is passed the sooner those affected will be protected; but until that happens, thousands of families are at risk of facing Probate proceedings.

“Simply the best way to protect yourself if you aren’t married is to ensure you have a Will in place. It could be the difference between a couple of hundred pounds, and thousands if you need to go through the Courts.”

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