Legal Myth-Bursting. Hey everyone, I hope you are well. In today’s post, I will be sharing a guest post from Amanda Hamilton. Amanda Hamilton is Chief Executive of the National Association of Licensed Paralegals (NALP). Amanda will share insight into the three common legal myths that most people believe are true. And why this is dangerous.
Many of us have a basic understanding of some aspects of the law, but there are a few areas where myths seem to persist. For example, is there such a thing as a Common Law wife or husband? Does a ‘Will’ guarantee your wishes will be followed after your death? And if you break the law unwittingly because you genuinely didn’t know the action you took was illegal, the courts will be lenient. These are three commonly held beliefs – but how accurate are they?
Let’s take a look at each in turn:
Legal Myth 1:
‘Common-Law Wife or Husband’.
Have you ever thought that living with a long-term partner gives you ‘legal’ rights in law similar to that of a married couple?
If so, then you are wrong! There is no such thing as a ‘common-law wife or husband’.
If you live with a partner but are not married and have not entered into a civil partnership (CP), then that partner is a cohabitee. Married or CP partners have benefits in respect of inheritance, pension rights and tax. Unmarried partners do not. You live with your partner, are not married, or are in a civil partnership. You would have to make a Will and leave your property and all your assets to them. Otherwise, your partner’s relatives could come along and take everything. This will apply even if you have been living together for twenty, thirty or forty years.
This is precisely what occurred when the actor Nigel Hawthorne died in 2001. He was living with his partner for over twenty years in a house that belonged to him. On his death, as he had not made a Will, the estate passed to Nigel’s relatives, who effectively owned the home he and his partner had made their own. Luckily, they were lenient enough to allow his partner to remain in the property for his lifetime.
Many people have been caught out by the myth that living with someone over a long time gives that partner rights in the common law. Of course, one can argue that if the partner (whose name is not on the title deeds to the property in which the couple has lived). Has contributed to the outgoings of the home. Then that partner may have some beneficial interest in the property. This translates as having a share of the proceeds of sale should the property be sold. How much would be dependent on the amount of contribution over several years? Assistance could include paying for grocery shopping regularly, cooking, cleaning, paying utility bills, or paying mortgage payments. The extent of the share in profits on sale would be down to the court to decide if the ‘owner’ of the property and the partner disagree.
Ultimately, the best way to tackle the situation is either to get married or make a Will.
Legal Myth 2:
‘Making a Will is a declaration of a deceased’s intention regarding who shall benefit from their estate after their death’.
This is a true statement provided the Will is valid and has appropriately been ‘executed’, i.e. adequately signed and witnessed according to the statute.
However, as with all legal principles, there are always exceptions. For example, a Will can impliedly be revoked by a subsequent marriage. So, if an individual makes a Will, there is no mention in the Will of that individual marrying (the Will is not made in ‘contemplation’ of marriage). Suppose the testator (the person making the Will) marries without amending the Will or creating a new one. Then the marriage will revoke the existing Will.
Consequently, the deceased will die intestate.
This means that the person who is first in line to inherit the estate is the surviving spouse. Even if they are not included in the original Will and even if the deceased wanted their estate to go to someone else.
This loophole in the law allows unscrupulous individuals to step in and sweep up a person’s assets on death. There has been a spate of recent court cases in which a younger man has persuaded an older woman to get married. And not long after such a marriage, the woman has died. The beneficiaries under the Will (the deceased’s family) have gone to court to challenge the rule (that automatically revokes the existing Will upon marriage) and ask the courts to re-instate the gifts made to the beneficiaries in the Will.
Legal Myth 3:
‘You don’t know what you don’t know’ – Ignorance of the Law is no defence
The fact that you are unaware of the law is no defence. When it comes to crimes, we are all taught what is deemed right and wrong .very early. We don’t go around punching people on the nose very early because we know this may amount to an assault that is a criminal offence and punishable by a fine or imprisonment.
However, when it comes to other matters, such as actions that may constitute a civil wrong instead of a crime, we cannot plead ignorance as a defence. For example, let’s say that you come home one night to find a burglar has broken into your property, and you catch them in the act of stealing. If you use force to restrain him/her, and while doing so, the burglar is injured. Are you aware that s/he can sue you for compensation for those injuries? So, even though the burglar is committing a crime, you are only allowed to use what amounts to ‘reasonable force’ to restrain or escort the burglar off your premises. What is ‘reasonable’ will be for the courts to decide.
If you decide to buy a property and then rent it out, you may need a local authority licence. Recently, a friend bought a house in the North of England and decided to rent it out. A few months after finding a tenant, she received a warning letter from the local authority stating that she was a landlord without a licence, and she would be taken to court for non-compliance. She was ignorant of the need for this. As she said to me: ‘you don’t know what you don’t know! But not knowing is not an acceptable defence – it is your responsibility to ensure you are aware of the law and your legal requirements and obligations.
If you find yourself in a complicated legal situation and need some expert advice or help, then it’s often worth contacting a paralegal in the first instance. Paralegals can do almost everything a solicitor can (except for certain reserved activities), and they charge considerably less per hour. To find a qualified, licenced paralegal, search the National Paralegal Register: https://www.nationalparalegals.co.uk/national-paralegal-register/.
I hope you enjoyed that.
ABOUT THE AUTHOR
Amanda Hamilton is Chief Executive of the National Association of Licensed Paralegals (NALP). A non-profit Membership Body and the only Paralegal body recognised as an awarding organisation by Ofqual (the regulator of qualifications in England).