Protect cohabiting couples from being forced into deathbed marriages

A rise in the number of deathbed marriages has led to renewed calls to improve legal and financial protection for cohabiting partners, many of whom still mistakenly believe they have the same rights as married couples.

It is a move backed by Wards Solicitors' Partner, Jenny Pierce, Head of the Wills, Probate and Mental Capacity team and also a director of the national organisation, Solicitors for the Elderly, a specialist group of lawyers set up to support and make a difference to older and vulnerable people.

Along with a coalition of groups including Resolution, the Family Law Bar Association, community interest groups, OnlyDads and OnlyMums, and charities Relate and OnePlusOne Marriage and Partnership Research, she is shocked by signs of a growing trend including:

• Home Office evidence of more deathbed marriages, including that of the comedian Ken Dodd who married his partner of 40 years just two days before his death. If he hadn't done this, all but the first £325,000 of his estimated £7 million estate would have been taxed at 40 per cent;
• Passport Office figures recording a rise in the number of 'urgent marriages' usually in hospitals but also prisons. In the three months to May 2018 there were 190 such licences issued while in 2015 the quarterly average was around 148.

Lack of rights

The lack of rights for a couple in a cohabiting partnership can be starkly highlighted when one person dies. Not only is the surviving partner exposed to inheritance tax, they can't claim certain benefits and have no right to their partner's pension.

And if that partner dies without making a Will, the estate falls under the rules of intestacy which means it could pass to someone never intended to benefit instead of the person they'd shared a life and a home with for years.

In the case of Ken Dodd, for instance, if he had not married his long term partner before his death, she could have been left with no legal status, a huge inheritance tax bill and the possible loss of her home.

"Cruel"

Wards Solicitors' Jenny Pierce is alarmed at the increase in deathbed marriages and wants the Government to not only ensure minimum rights for cohabiting couples but also to increase awareness of their precarious legal position.

"It is cruel that cohabitees who choose not to marry or enter into a civil partnership are treated so unfairly compared to married couples when it comes to legal rights and financial protections," she says.

"It is the desire for financial security and pension rights that is pushing panicking cohabitees into deathbed weddings as they suddenly become aware of how exposed and vulnerable they are at an already incredibly emotionally charged time.

"This just isn't right and illustrates why it is crucial to raise awareness of the problems with the current law and to press for change to offer cohabitants protection on death."

A changing society

According to figures from the Office for National Statistics (ONS), the number of unmarried, cohabiting couples has soared - from 1.5 million families in 1996 to 3.3 million last year - yet two thirds of them do not know that there is no such thing as common law marriage.

Following the legalisation of gay marriage in 2014, and contrary to Government predictions, there has also been a two per cent increase in civil partnerships, which afford the same legal and financial protections as marriage, for the second year running with more than half of all civil partners aged 50 or older.

Although civil partnerships are currently only available to same-sex couples, the Supreme Court ruled earlier this year that it was discriminatory to deny them to heterosexual couples and it is expected that the law will be changed at some point in the future.

Even the Marriage Foundation, which campaigns in favour of the traditional union, supports extending civil partnerships believing they are "infinitely preferable to unthinking and risky cohabitation".

What to do in the meantime

Making a Will, and keeping it regularly updated, is absolutely vital when you are cohabiting. Unlike married couples, as a cohabitee, you don't have an automatic right to your partner's estate if one of you dies without leaving a Will. Addressing this is key, drawing up a legal document which sets out exactly what you want to happen if one of you dies.

There are also other sensible steps you can take, whilst you are both fit and healthy, to protect yourself both legally and financially. As well as making a Will, and keeping it up to date, these include making Lasting Powers of Attorney, taking out a Cohabitation Agreement and a Declaration of Trust.

For more information about cohabitation, please contact Wards Solicitors specialist Cohabitation Team and to talk to someone about making or revising your Will, please contact our Wills, Probate and Mental Capacity Team.