To be, or not to be…

Fiona Dodd, a partner at Mayo Wynne Baxter, explains the potentially serious implications faced by couples who don’t marry and don’t have wills.

“To be, or not to be…married? That is the question.” Shakespeare was a little more eloquent but, if he’d been around on Valentine’s Day, he may have overheard one or two proposals, and read more than a few cards proclaiming his poetry. 

Shakespeare and his mastery of the English language have survived 400 or more years, but some things haven’t, even if we think they have. For example, many people still believe that the idea of a common law husband or wife exists. It doesn’t. The only way to guarantee you have the rights of married couples is to get married or have a civil partnership. It may not be romantic, but it can have very significant consequences. I have been writing wills for a few more years than I care to remember now, and I know that I have been responsible for several weddings, including one for a lovely couple who had been together for over 20 years, and were very happy as they were, until they realised the tax consequences. They went to the town hall, got their certificate, hid it somewhere safe, and as far as I know are still living happily ever after. 

Mrs W, who I heard about on the news a while ago, had been living with Mr M for 18 years before his sudden death. They owned a house together, and probably thought of themselves as an “old married couple”. However, they weren’t. Mr M had separated from, but never divorced, his wife. Nor did he have an up to date will. When he died, his share of the home that he bought with Mrs W passed not to her, but to his wife. 

Nearly four years after her partner’s death, and following a long, and expensive court case (with costs of over £100,000 being mentioned), Mrs W finally secured the right to inherit her partner’s share of their joint home. But Mrs M has the right to appeal, so the ordeal didn’t end there.

Even if the appeal does not proceed, the emotional costs of this case are enormous for all concerned, and the sadness is that it could all have been avoided for a relatively small sum if he had written a will.  

The law does not provide unmarried couples with the same protection as married couples, even if, as in this case, Mr M lived for many years with his unmarried partner, instead of his wife. His wife had an automatic inheritance, his partner did not.  

Divorce is expensive, both emotionally and financially. Many couples decide to bypass the lawyers where possible and opt for DIY. However, if there isn’t a court order in place dividing the finances, an ex-spouse can make a claim for a share of the estate. I dealt with a very sad situation a few years ago when Mr K, who was twice divorced and had two children died before the second financial order was made. There were four sets of lawyers and eventually his assets, after a long battle, were finally divided between all four parties. Lawyers would rather people don’t get into difficulty in the first place, and it’s no victory to see so much spent in fees when a Will could have helped them all. 

Marriage is often the happy joining of two families. But that’s not always the case, and I see many parents wanting advice on how to protect what they see as their family’s inheritance from their children’s chosen spouse. A will can be part of that protection, or the use of family trusts, or even simply talking to your children about pre-nups before marriage. We can help clients think through their priorities and structure their arrangements to suit their aims. Often the question is not what are you protecting, but why? And from whom?

That protection may extend not just to personal assets, but business owners need to be sure that they have put measures in place to ensure that their business can continue, and that they haven’t inadvertently caused a tax problem by making the wrong arrangements! We can advise and discuss the best options to ensure that a client’s happiest day ever really isn’t the start of a list of legally avoidable problems! 

Whether or not a person chooses to marry, or to divorce, or to live together is an entirely private matter. However, it should be an informed decision, bearing in mind all the known legal implications. Shakespeare also said in the Merchant of Venice: “One half of me is yours, the other half yours. Mine own, I would say; but if mine, then yours, and so all yours.” If that’s what you want to happen, then make sure you have the everything in place to achieve this, instead of “Love’s Labour’s Lost”. 

fdodd@mayowynnebaxter.co.uk

www.mayowynnebaxter.co.uk

0800 84 94 101