Court finds in favour of the “common law wife”

I published this story in an earlier post on cohabitation. Joy Williams lived with Norman Martin for 18 years in a property which they jointly owned.  However,  when they purchased the property they registered it as tenants in common rather than joint tenants.   There is an important difference between tenants in common and joint tenants.

As tenants in common  Mr Martin and Ms Williams each owned a share of the property which they were free to leave to a friend or relative etc in their will.    In the absence of a will the property would pass to their next of kin.  If   Mr Martin and Ms Williams had bought the property as joint tenants  they would each have owned the whole property and on Mr Martin’s death  the property would have passed to Ms Williams.

If you own a property with your partner as tenants in common then you each have a divisible share of the property which could be 50-50 but not necessarily.  The shares are decided at the date of purchase and recorded at the Land Registry.  Whatever your share of the property you are free to leave it to whomever you choose in your will.  If you do not make a will then as your share of the property forms part of your estate on death it will pass in accordance with the intestacy rules.

In this case Mr Martin and Ms Williams owned the property as tenants in common in equal shares.  However Mr Martin was still married at the date of his death to his estranged wife Maureen Martin and he did not leave a will.  Therefore on his death his share of the property passed to his next-of-kin Maureen Martin.  Mrs Martin would also have had claims against her husband’s share of the property if they had embarked on divorce proceedings.    Further, even if Mr Martin had made a will leaving his share of the property to Ms Williams his estranged wife would have been able to make a claim against his estate if she had been dependent upon him at the date of his death and this is usually evidenced by the payment of spousal maintenance.

Even though Joy Williams has won her case it has cost her £100,000 in legal fees.  The court has ordered Mrs Martin to pay these costs but this is subject to an assessment of the costs which could well result in  Ms Williams receiving considerably less than £100,000.  Further, Mrs Martin has said that she intends to appeal the decision and in my humble opinion she may well have grounds to do so.  Ms Williams has won this battle but she may not yet have won the war.

All of this misery could have been avoided if Mr Martin had:

a.  Divorced his wife at some point during his 18 year relationship with Ms Williams; or

b.  Registered the property as joint tenants in the first place; or

c.  Made a living together agreement; or

d. Made a will which would have cost perhaps in the region of £200 considerably less than the £100,000 which Joy Williams spent in trying to keep her home.

There are so many ways this situation could have been avoided and although it is true to say that hindsight is a marvellous thing so is a little forethought.