Common Law Spouses

An area that causes great distress, because of a lack of understanding, is the situation that “Common Law Spouses” or cohabitants find themselves in when their partner dies without having made a Will, which is known as Intestacy. Under the current legislation such cohabitants are not entitled to inherit within the Intestacy Rules.


An area that causes great distress, because of a lack of understanding, is the situation that “Common Law Spouses” or cohabitants find themselves in when their partner dies without having made a Will, which is known as Intestacy. Under the current legislation such cohabitants are not entitled to inherit within the Intestacy Rules.

Last week the Lords debated the Inheritance (Cohabitants) Bill, a private members Bill bought forward by Lord Lester of Herne Hill, having been drafted by the Law Commission of England and Wales.

The Bill is intended to redress the inequalities of the treatment of cohabitants on the one hand, and married couples and registered civil partners on the other, when their partner dies intestate. Currently a cohabitant can only benefit from a deceased’s partner’s estate by claiming under the Inheritance (Provision for Family and Dependants) Act 1975, even if there are children from the partnership.

This Bill would confer on cohabitants the same right to the Statutory Legacy in the Intestacy Rules as enjoyed by married couples and registered civil partners, and its supporters are keen that bereaved cohabitants and their children do not have to bear additional hardship in intestacy. They have also emphasised that the Bill is not an attack on marriage.

However, opponents to the Bill feel that the current legislation, i.e. the 1975 Act, provided sufficient judicial discretion to remedy such potential hardships.  They argued that at present, society needed a conscious, explicit and deliberate public commitment as evidenced by marriage and not legislation that made such a commitment less necessary.

This was the second reading of the Bill. The next stage is the committee stage to consider the Bill line by line and this stage has yet to be scheduled. As this Bill started in the Lords, it must first go through all their stages before getting to the Commons. Its progress there will much depend on the timetable of Government business and other Private Members Bills.

There is no guarantee that this Bill will ever make it onto the Statute Book and it will certainly be some time before we know the outcome.  It is therefore recommended that all cohabitants should make at least a basic Will to avoid these problems.
Philip Groom
25th October 2012


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