A recent article in the Daily Mail has highlighted the plight of Grandmother Joy Williams, who may lose her £355,000 home because her "common law" husband's estranged wife inherited half the property she lives in.
The facts of this matter were that Ms Williams, 69, had lived with her partner Mr Norman Martin for 18 years after he split from his wife. Unfortunately, Mr Martin never divorced from his wife and never updated his Will, so when he died of a heart attack in 2012 his half share in the house that he shared with Ms Williams and his assets went to his estranged wife, Mrs Martin. Ms Williams then launched an application in the Courts to have “common law” spouses officially recognised. This case has yet to be determined but Ms Williams is seeking an award that Mr Martin’s share of the home should pass to her so she has some security for the future.
This case highlighted a need for the cohabitation laws to be reformed and in particular, emphasised that the commonly held belief that a couple who are cohabiting as common law “husband and wife” is a complete myth and there is no legal status for “common law marriage”.
How to Prevent Yourself from Falling into this Trap
Prior to cohabiting together or immediately following the purchase of their home together Ms Williams should have sought legal advice. She would have been advised that as Mr Martin had never divorced his wife nor changed his Will, his wife as a beneficiary under the Will, would on Mr Martin’s death inherit his assets which would include his interest in the property jointly owned by Mr Martin and Ms Williams.
Mr Martin should have been advised independently to divorce his wife which would have had the effect of his wife being treated as if she had died prior to his own death and she would not have received any share of his assets. To reinforce this fact he should have made a new Will following his divorce in which he made new bequests. If the property that he owned with Ms Williams was held as tenants in common (not as joint tenants) he could have, under his new Will, passed his share in the property to Ms Williams on his death.
Ms Williams could then have made a similar “Mirror Will” to the same effect. This is necessary step because unmarried couples have no guaranteed right to ownership of each other’s property if one cohabitant dies.
Protect Yourself with a Living Together Agreement
At MW, we also advise couples who wish to cohabit to enter into a “Living Together Agreement” which can deal with the respective parties’ legal rights and any mundane matters such as paying bills and other outgoings for the property. We recommend that you should make a Living Together Agreement prior to or as soon as you first move in together, but it can still be made even if you have been cohabiting for many years.
The purpose of the Living Together Agreement is to determine how you will live together. It will mean that you will both discuss what you expect of each other and you organise the day to day finances of living together.
In the same way that a Pre-Nuptial Agreement seeks to set out what would happen to the matrimonial assets on divorce, a Living Together Agreement can set out the basis for the division of assets acquired during the time the parties cohabited. In particular, it lays down rules relating to any future break-up which can assist you both to remain on good terms. The respective contributions each has made will be reflected in the Living Together Agreement on a break-up and there will not be any need to negotiate at the time of a break-up when emotions run high. The Living Together Agreement will already state how the break-up is to be managed.
If a Court is required to look at a Living Together Agreement following a break-up, perhaps because one party is unhappy about the terms previously agreed, it is likely that the Court will generally follow what you both agreed if it still produces a fair result for both of you and you were both honest with each other about your finances at the start.
It is important that prior to entering into a Living Together Agreement you both seek independent legal advice. If the Agreement reduced to a full legal “deed” it will be legally binding upon you in the same way as any legal contract between two parties.
How We Can Help
At McMillan Wiliams, our highly experienced Family Solicitors can assist anyone who proposes to live with a partner either prior to the purchase of property by them both or where the property is in the sole name of one party. We make sure that they know what their legal rights will be on a break-up and take such steps as are necessary to protect themselves from any detrimental effect of a break-up.
The article in the Daily Mail highlighted the dangers that can arise if neither party seeks independent legal advice prior to purchasing property either in one party’s sole name or together. Sadly in the case Ms Williams she is unlikely to prevent the estranged wife of Mr Martin from taking half her share of the property which she owned with Mr Martin, as there is no legislation which recognises the rights of “common law spouses”.