Bermuda: Estate Planning Solutions For Common Law Couples

Last Updated: 16 July 2012
Article by Michael Mello

Colloquially, the term 'common law marriage' is used to describe the relationship of a man and a woman who live together as husband and wife without having gone through a legal ceremony of marriage.

The non-recognition, in Bermuda, of common law marriage – however long-standing or permanent the relationship – is a striking example of public policy designed to uphold the sanctity of marriage by the total denial of intestate succession rights to unmarried cohabitants in Bermuda.

In the case of unmarried cohabitants, the surviving partner will have no claims, under Bermuda intestacy rules, to the estate of the deceased partner. There is no statutory remedy in Bermuda law, as there is for such persons in the United Kingdom (UK) under the Inheritance (Provision for Family and Dependants) Act 1975, as amended by the Law Reform (Succession) Act 1995.

The present state of the law in Bermuda is:

  • there is no legal duty to support a cohabiting partner either during cohabitation or after break-up
  • unmarried fathers have no automatic rights or duties toward their children
  • because cohabiting couples have no legal recognition of their cohabitation, their possessions, which may have been shared during cohabitation, remain the property of the legal owner upon break-up
  • without a will, cohabitees do not automatically inherit anything, unless the property is jointly owned

Unlike in Bermuda, in 1995 the UK recognised the right of common law spouses, by extending the class of persons who could apply for reasonable financial provision out of a deceased person's estate, to a person who, during the two years immediately preceding the death, was living in the same household as the deceased and as the spouse of the deceased.

In such applications, the UK courts are directed to have regard to the applicant's age, the duration of the relationship and the contribution made by the applicant to the welfare of the deceased's family, including any contribution made by looking after the home.

In contrast, Part III of our Succession Act 1974 only includes spouses or former spouses, as persons who can make a claim for financial support from the estate of a deceased, but does not recognise a common law spouse.

However, that is not to say that an unmarried cohabitant has never, in fact, succeeded on intestacy since there is a presumption of marriage, which arises when a man and a woman cohabit and hold themselves out to be husband and wife. In such cases, the burden of disproving the marriage will fall on those who allege that the parties were not married, which must be proved beyond a reasonable doubt.

Until recently, if no one challenged the common law spouse on the validity of the marriage and entitlement on intestacy, the court would usually grant the application for Letters of Administration as proof of marriage was not then strictly required by the court. The legal presumption is: the longer the cohabitation, the stronger the presumption.

However, the Registrar of the Supreme Court has since 2007 adopted the practice of requiring the production of a marriage certificate in cases involving applications for Letters of Administration (i.e. where there is no will) in order to be satisfied that the applicant spouse was in fact married to the deceased at the time of death and thereby entitled to the grant.

Bermuda law probably hasn't changed, not because it is too difficult to formulate a precise definition of a cohabitant or life partner for the purposes of succession or inheritance as was done in the UK, but more likely because, as a matter of public policy, the law seeks to uphold the sanctity of marriage and the Government is reluctant to recognise equal legal status for unmarried partners.

Government may also be reluctant to change the status quo because cohabitations are extremely varied, from the long-term relationship to the more temporary arrangements of young people living together in "trial" or "practice marriages". Most such liaisons involve members of the opposite gender, some involve people of the same gender, and some are sexual while some are not. The more one thinks on it, the more one appreciates the complexities involved in trying to craft a satisfactory definition for the purposes of inheritance, and whether or not other legal rights presently enjoyed only by married couples should also be granted, as it is difficult to decide where to draw the line.

It must also be recognised that some couples deliberately choose not to marry for tax reasons, or simply because they wish to avoid the obligations of marriage. In such cases, it would be wrong to impose the obligations of marriage on cohabitants who intentionally are trying to avoid them.

The estate planning solution for common law couples rests in making formal legal arrangements, such as: a co-habitation agreement clearly setting out the terms of the co-habitation, jointly purchasing their home, granting a power of attorney to their partner and, most importantly, preparing wills to govern their respective positions on death.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Michael Mello
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