A reform for cohabitation law

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November 3, 2009

Cohabitants who have lived together for more than five years could be given the same rights on death as married couples under plans unveiled by the Law Commission.

The proposals, out for consultation until 28 February 2010, suggest that if a cohabitant dies without a will and the couple do not have children, the survivor would have the same rights over the estate of the deceased partner as a surviving spouse in a marriage.

One option put forward by the commission would see the whole of the estate go to the surviving spouse or partner, a move that one lawyer described as “potential dynamite for probate solicitors”.

If there are children, the minimum qualifying period in cohabitation cases would drop to two years, but ordinary rules would apply by default if fewer than two years had elapsed.

But family lawyers have only given a tepid welcome to the consultation.

For Tina Dunn, a partner in the family team at Mace and Jones, the review is appropriate but she is disappointed at the piecemeal approach.

“There have been talks about giving cohabitants certain rights for some time, not just intestacy,” she says. “So this is a step in the right direction but it fails to tackle separation.”

Nicola Plant, head of private client at Thomas Eggar, agreed the proposals only address a comparatively minor issue without looking at the whole cohabitation picture.

“There is a lot of talk about intestacy rights but there is no mention of responsibilities,” she said. “Would it be right for you to have a right to claim on my estate but no responsibility to me during my lifetime? The proposals only look at what happens on death, but you can’t look at this without addressing the whole issue of cohabitation and how you define it.”

Marilyn Stowe, senior partner at Stowe Family Law, goes further. “Separation of cohabitants as a result of death is rare but when it happens it can be a nightmare,” she comments. “What is needed is complete harmonisation of cohabitation with marriage.”

Stowe says there are far more issues with assets and property on separation as a result of breakdown, and that intestacy disputes are a much rarer occurrence compared with cohabitation disputes between live partners.

She said the ‘economic loss’ approach in a previous Law Commission paper on cohabitation provided a suitable model. “It didn’t equate cohabitation with marriage and offered less of a remedy than in marriage breakdowns, but it offered a remedy nonetheless,” she says.

But it is the lack of political commitment which Stowe said could endanger any move towards greater rights for cohabitants, with the current government waiting to see the result of changes to the law in Scotland, and the Conservatives having spoken against specific legislation.

Tom Farley-Hills, a solicitor in the private client team at Speechly Bircham, is equally doubtful that without such support this latest proposal will herald more fundamental, much-needed change.

“The recommendations might indicate that momentum for reform of cohabitation law is building. I am just not sure whether there is any political will currently to make these recommendations law.”

Dependency claims: costly and tricky

Claims under the Inheritance (Provision for Family and Dependants) Act 1975 can be expensive and evidence of dependency difficult to collate.

Some firms have nonetheless reported a rise in claims, and Tom Farley-Hills said the proposals could help reverse this trend.

Costs are a significant factor, making many individuals who could potentially qualify as applicants under the Inheritance Act not pursue a claim. They are also the main reason why the estate will not contest such claims.

Marilyn Stowe says the majority of the disputes she handles under the Act settled for these reasons.

“Most Inheritance Act claims are successful and the person executing the will is understanding. There will usually be some skirmishes but disputes usually settle rather than go to court, mainly because of the costs risk,” she says.

The other main difficulty is the ability to provide evidence of dependency, according to Tina Dunn.

“Claimants would initially approach the executor, who acts in the interest of the beneficiaries,” Dunn says.

“Dependency is not a matter of equality and there will be competing interests over the estate. The executor or the judge will have to rely on what was said when the deceased was alive. Letters or the fact that partners shared bank accounts will help establish dependency, but it will often be somebody’s

word against somebody else’s.”

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