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Court awards share of property to live in partner over estranged wife - why you should always make a will
22 February 2016

On Tuesday 16th February the Central London County Court awarded Ms Williams who lived with her partner Mr Martin for 18 years his share of their home in a legal battle with his estranged wife.

Mr Martin had moved out of the marital home in 1994 and began to live with Ms Williams. They then bought a property together in Dorchester as tenants in common in 2009. This meant that when Mr Martin died in 2012 of a heart attack, his share of their home, did not automatically go to Ms Williams. Mr Martin died without leaving a Will reflecting his relationship with Ms Williams and without having got divorced. His estate which included his share in the house therefore passed to his estranged wife. This left Ms Williams at risk of losing her home.

Ms Williams brought a claim for “reasonable financial provision” under the Inheritance (Provision for Family and Dependants) Act 1975. She had to establish that for two years up to his death she had lived in the same household as Mr Martin as his wife, or that immediately before his death she was being maintained "wholly or partly" by him.  

The estranged wife, Mrs Martin, had said that she had remained his wife, rejected the suggestion that they were estranged and  argued that Mr Martin was not maintaining  Ms Williams in a manner required by the law. However judge Gerald stated that the reason why they did not get divorced was a practical one and not due to the deceased harbouring any marital or other feelings towards Mrs Martin. He judged it therefore to be a marriage in name only and that from 1994 onwards the relationship had been purely “financial”.

Ruling in Ms Williams' favour, the judge felt it was clear that she and Mr Martin had in “all material respects” had lived in the same household as husband and wife. The judge recognised that Ms Williams was living in a manner “around subsistence level”. Ms Williams had been due to retire in 2012 but had to continue working. The judge said it was a “fair and reasonable result” that she should have “an absolute interest in the deceased’s one half share” of the home which she shared with Mr Martin in a relationship that was “loving and committed”.

Mrs Martin was ordered to pay £100,000 in costs within 42 days pending detailed assessment, an amount described by her barrister as “eye watering”.

Key points:

-  Unmarried Couples who live together:

  • DO NOT automatically have the same rights as a married couple or those in a civil partnership – there is no such thing as a Common-law husband or wife;
  • SHOULD have cohabitation agreements in place;
  • SHOULD  make a will to ensure that the survivor is protected if that is what they wish, as otherwise under intestacy rules the estate of the first to die will pass to (estranged wife/ children/ parents) and a legal battle is likely;
  • SHOULD consider their individual financial position in relation to their partner and consider whether they need to take advice to protect each other in future.

For more information about how to change or make a will please contact Joanna Staerck on 0118 952 7179 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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