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Loading...By Amanda Hamilton, National Association of Licensed Paralegals
Is there such a thing as a Common Law wife or husband? Does a Will guarantee your wishes will be followed after your death? And if you break the law unwittingly because you genuinely didn’t know the action you took was illegal, will the courts be lenient? The answer to all of these questions is … no. Here’s why:
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Common Law Wife or Husband
Have you ever thought that living with a long-term partner gives you ‘legal’ rights in law similar to that of a married couple?
If so, then you are wrong! There is no such thing as a ‘common law wife or husband’.
If you live with a partner but are not married and have not entered into a civil partnership (CP), then that partner is a cohabitee. Married or CP partners have benefits in respect of inheritance, pension rights, and tax. Unmarried partners do not. So, if you are living with your partner, and you are not married or in a civil partnership, and you wish to secure their future, then you would have to make a Will and leave your property and all your assets to them, otherwise your partner’s relatives could come along and take everything. This will apply even if you have been living together for twenty, thirty, or forty years.
This is exactly what occurred when the actor Nigel Hawthorne died in 2001. He was living with his partner for over twenty years in a house that belonged to him. On his death, as he had not made a Will, the estate passed to Nigel’s relatives who effectively owned the home that he and his partner had made their own. Luckily, they were lenient enough to allow his partner to remain in the property for his lifetime.
Many people have been caught out by the myth that living with someone over a long period of time gives that partner rights in common law. Of course, one can argue that if the partner (whose name is not on the title deeds to the property in which the couple has lived) has contributed to the outgoings of the home, then that partner may have some beneficial interest in the property. This translates as being able to have a share of the proceeds of sale should the property be sold. How much would be dependent on the amount of contribution over a number of years? Contributions could include paying for grocery shopping on a regular basis, cooking, cleaning, paying utility bills, or contributing to the mortgage payments. The extent of the share in profits on sale would be down to the court to decide if the ‘owner’ of the property and the partner do not come to an agreement.
Ultimately, the best way to tackle the situation is either to get married or alternatively, make a Will.
Making a Will is a declaration of a deceased’s intention regarding who shall benefit from their estate after their death.
This is a true statement provided the Will is valid and has been properly ‘executed’ i.e. properly signed and witnessed according to statute.
However, as with all legal principles, there are always exceptions. For example, a Will can impliedly be revoked by a subsequent marriage. So, if there is a Will made by an individual, and there is no mention in the Will of that individual marrying (the Will is not made in ‘contemplation’ of marriage), then if the testator (the person making the Will) subsequently marries without amending the Will or making a new one, then the marriage will revoke the existing Will.
Consequently, the deceased will die intestate. This means that the person who is first in line to inherit the estate is the surviving spouse – even if they are not included in the original Will and even if the deceased really wanted his/her estate to go to someone else.
This is a loophole in the law allowing unscrupulous individuals to step in and sweep up a person’s assets on death. There has been a spate of recent court cases in which an older woman has been persuaded by a younger man to get married and not long after such a marriage the woman has died. The beneficiaries under the Will, (the family of the deceased), have gone to court to challenge the rule (that automatically revokes the existing Will upon marriage) and ask the courts to re-instate the gifts made to the beneficiaries in the Will.
There has also been a campaign in the House of Commons to change the law to stop such ‘predatory marriages’ and prevent the exploitation of elderly and vulnerable individuals which ultimately causes a lot of heartache and grief to their relatives.
You don’t know what you don’t know, and that’s fine
The fact that you are unaware of the law is no defense. When it comes to crimes, we are all taught at a very early age, what is deemed right and wrong. We don’t go around punching people on the nose because we know that this may amount to an assault which is a criminal offense and punishable by a fine or imprisonment.
However, when it comes to other matters such as actions that may constitute a civil wrong as opposed to a crime, we cannot plead ignorance as a defense. For example, if you decide to buy a property and then rent it out, you may need to have a license from the local authority to do so. Recently, a friend of mine bought a house in the North of England and decided to rent it out. A few months after finding a tenant, she received a warning letter from the local authority stating that she was a landlord without a license, and she would be taken to court for non-compliance. She was totally ignorant of the need for this. Luckily, she managed to sort it out (at great cost) before it got to court. As she said to me: ‘you don’t know what you don’t know!’ But not knowing is not an acceptable defense – it is your responsibility to ensure you are aware of the law and your legal requirements and obligations.
If you find yourself in a difficult legal situation—whether it involves a legal myth or not—and you need some expert advice or help, then it’s often worth contacting a paralegal in the first instance. Paralegals can do almost everything a solicitor can (with the exception of certain reserved activities) and they charge considerably less per hour. To find a qualified, licenced paralegal search the National Paralegal Register.
Amanda Hamilton is Chief Executive of the National Association of Licenced Paralegals (NALP), a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its training arm, NALP Training, trading as National Paralegal College, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional.
The views and opinions expressed in this blog post or content are those of the authors or the interviewees and do not necessarily reflect the official policy or position of any other agency, organization, employer, or company.
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