‘Common Law’ spouses & Inheritance issues for unmarried couples, or cohabitant:
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (“the Act”), in force since 1st January 2011, as obvious from its title introduced the new legal concept of ‘cohabitant’ for those couples living together; It is the first step in protecting the rights of what used to be called ‘common law’ partners, (who, despite the title, had no legal rights). The effect of the Act is to put in place a legal safety net for people living in long-term relationships who might be vulnerable financially, and provides a right to qualifying cohabitants to seek financial redress at the end of a relationship, including on the death of the cohabitant.
There inheritance rights are NOT automatic rights, but qualified cohabitants are entitled after the death of a cohabitant to apply to Court for an order for provision out of the net estate. A ‘qualified cohabitant’ is a cohabitant who has lived with another adult for more than 2 years (if they have a child) or otherwise it is 5 years.
Couples can opt-out and register a “cohabitant agreement” which regulates the shared financial affairs of the couples and preclude inheritance. These are valid only if the cohabitants have each received independent legal advice or have received legal advice together and have waived the right to independent legal advice, have signed the agreement, and it complies generally with contract law. Otherwise,‘common law’ partners are covered by the redress scheme for cohabitating couples (same-sex and opposite sex who are not married).
The scheme is activated at the end of a relationship, whether by break-up or death. It will allow you, a “financially dependent” cohabitant to apply to Court for redress. The orders that can be sought include a transfer of property, a lump sum, periodic payments and a share in the other person’s pension. If the relationship ends through death, the surviving cohabitant can make a claim on the estate.
In deciding whether to make the order, the court must consider a number of issues. These include the length of the relationship and the level of financial dependence between the couple; the contribution or sacrifice that each has made for the welfare of the other, etc. A qualified cohabitant cannot apply for an order of the Court where the relationship concerned ended two years or more before the death of the deceased unless the applicant was in receipt of periodical payments from the deceased either under an order made under the Act or pursuant to a cohabitants agreement or unless proceedings under the Act for financial redress were pending at the time of the death.