The Government has shelved proposals that would have provided greater financial certainty to cohabiting unmarried couples.
Louise Igoe, a partner at Lodders Solicitors in Stratford-upon-Avon, said the about turn had reinforced the importance for cohabiting couples to make wills.
“A lot of cohabitants believe that where unmarried couples have lived together for a length of time, they are treated for all purposes by the law as if they were married. This is often referred to as ‘common law husband and wife’.
“This is a myth and if there is no will, the intestacy rules apply which do not provide cohabitants with automatic rights to inherit. Therefore, if you are not married or in a civil partnership, your estate will not automatically pass to your partner,” she said.
“If you have children, your estate will pass to them and your partner may need to make a claim against the estate – effectively, sue the children – for a share of the estate if they have not been provided for sufficiently.
“It is therefore essential that you have a Will to ensure that your partner is provided for. This can also cover issues such as the appointment of guardians.”
The Government’s proposals were formulated by the Law Commission in July 2007 after a two year consultation. They also covered the treatment of property upon the separation of unmarried couples but those proposals will also not be taken forward at this stage.
Mrs Igoe said: “It had been clear for some years that the existing law, which was not designed for cohabitants, was uncertain and difficult to apply in these circumstances.
“The Law Commission also felt that it led to unjust results, although opinion was deeply divided with many considering that those who chose not to marry or enter into civil partnerships should not be treated in law as though they had done so.”
A Justice Ministry spokesman noted that it was already possible for cohabiting couples to draft wills and enter into cohabitation agreements to cover their property rights if they chose to do so, and the courts in England & Wales recognise such agreements as legally binding.
“It is hoped that the proposals will not be delayed beyond the next Parliament. However, I would advise cohabitants to make sure that they have a Will in place to ensure that their loved ones are provided for in the event of their death.”
