Family Law the Myth of the Common Law Wife

They say that all of life is a learning curve.  As a solicitor, I find that what happens when life ends can be the desperate learning of a very harsh lesson.


I’m sure that a number of readers will have tuned into Radio 4 recently to hear of the experience of a poor woman.  She had had a loving relationship with a man over many years, outside of marriage.  He had cancer.  She was his main carer.  There had been little, if any, discussion on life after he died.  In fact the will left everything to his long-separated wife and the children of the marriage.


The poor woman had simply thought that as a “common law” wife, she would have priority due to the fact of their loving relationship.  She discovered that trying to show his will was simply out of date meant nothing.  She was surprised to discover the stark truth.  She got back a sum of money representing the capital she had put in.  She lost one of her treasured wishes – the right to remain living in the home she had shared in life with her partner.


If she pushed it further, she might have brought a claim under the Inheritance Act.  That would have asked the Court to consider giving her reasonable financial provision from her late partner’s estate.  This could include the Court giving her a life interest in the property they shared.  She might also have a claim under the Trusts of Land and Appointment of Trustees Act.  Here she would ask the Court to resolve a dispute about the ownership of the house in her favour.  She might also be advised of the possibility of bringing a claim to challenge the validity of the will.  She might want to argue, for example, that her late partner may have been subjected to undue influence, or lack of capacity, or want of knowledge and approval.


But such challenges produce their own set of angst, particularly to someone still grieving at the passing of their loved one.  Allied to undoubted emotional trauma, there will be worries about the likelihood of success, delay, and significant costs issues.


Lawyers like me regularly bang the drum about the unfairness in the way cohabiting couples outside the union of marriage are treated in the law.  The phrase “common law wife” is virtually meaningless.  Cohabitation, no matter how long it might be, does not guarantee financial security.  Married partners have hugely more protection under the law as it presently stands.  Changes to the statute book have been slow in coming.


All the more reason, therefore, to ensure that there is a will in place which truly reflects the wishes at any given time of the will maker.  The man with cancer had an out of date will.  It did not reflect his true wishes as his cohabiting relationship developed.  But he did not think to change it.  So his old will, never swapped or updated, was the one which counted – the one taken by the Probate Court as representing his wishes as at the time of his death.


If you are in a cohabiting relationship outside of marriage, take time to stop and think.  Do you have a will?  Is it up to date?  Does it need changing?  If so, what steps will you take to make a will or update an existing one?


Real pain, real inequity may be the result of doing nothing.  The same applies to us all – make sure you gift your property to the people in your life who really matter.  Otherwise people you may no longer like or love may be the surprised beneficiaries of your largesse.


Contact my colleague Sharon Piper here at Busbys if this article stirs you into action.  Sharon is one of the region’s leading experts in wills, estates, probate, trusts and powers of attorney.  Ring her on 01288 35 9000 and see Busbys’ advert in this publication.  A will is perhaps the most important document you will ever sign – so don’t leave it too late.


John Busby

Busbys Solicitors

Bude & Holsworthy

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