Briefing from the Centre for Social Justice on the Inheritance (Cohabitants) Private Members Bill [HL] 2012-13
Tags: OPINION PIECE, Cohabitation, Inheritance, Intestacy
Table of Contents
- Introduction to The Bill
- Proposals in The Bill
- Critique of the Proposals by the Centre for Social Justice
1. Introduction to The Bill
The Inheritance (Cohabitants) Private Members Bill [HL] 2012-13, introduced by Lord Lester of Herne Hill proposes that in cases of intestacy (where someone dies without leaving a will) a surviving cohabitant would automatically be entitled to the same share that a bereaved spouse would receive. Cohabitants would qualify if they had had a child together and had lived in the same household as if they were married or in a civil partnership for two years; if the relationship was childless the qualifying period would be five years.
2. Proposals in The Bill
Under these proposals a cohabitant would receive the first £250,000 of the estate, plus any personal belongings and a life interest in half of the remainder, with the remaining half going to the children. If the intestate left no children, but did leave parents or siblings, the cohabitant would take the first £450,000 plus half of any remainder. Since these rules currently result in spouses inheriting the entire estate in 90% of cases where there are children, and in 98% of cases where there are not, and given that cohabitants, on average, tend to have fewer assets than married couples, cohabitants would almost always inherit the entire estate.
However, if the intestate was either married or in a civil partnership with someone else at the time of death, the surviving cohabitant would not qualify for these automatic rights, and would have to seek provision under the Inheritance (Provision for Family and Dependants) Act 1975. They can currently do so if they have been living together for two years, but this Bill would remove that qualifying period if the couple were living together at the date of death and had had a child together.
3. Critique of the Proposals by The Centre for Social Justice
The Centre for Social Justice has a number of serious concerns with these proposals.
- Giving cohabiting couples the same automatic rights as if they were married would be an unprecedented step. Contrary to the claims of Lord Lester, who has introduced this proposal, English law has never had a concept of ‘common law marriage.’
- Recent research has established that the link between legal reform and individual behaviour in this area is more complex than had previously been assumed, and that popular beliefs as to what the law is have had a greater impact than what the law actually is. Minor changes in the law in the late 1970s gave rise to a mistaken belief that cohabiting couples did have a ‘common law marriage’, and the emergence of this myth was followed in the 1980s by the sharpest increase in history of the number of couples who lived together and had children without marrying.[i] Giving cohabitants more rights is likely to strengthen the belief in common law marriage still further, leading to more couples believing that they have rights that they do not have and failing to take steps to safeguard their position as a result.
- It is far from clear how many people would benefit from the proposed change: the Law Commission estimates that around 5,000 people each year die leaving a cohabiting partner, but many of these will have left a will, while others may have no assets to leave in the first place. Most surviving cohabitants already have the right to claim under the 1975 Act, and those who do not (i.e. those who have been living together for less than two years) would not qualify under the proposed scheme either. The 7.5 million people referred to by the Law Commission as living in cohabiting families includes the children of such unions, who under the current law would inherit the entirety of the estate and so would actually be losing rights if this Bill were to be implemented and the surviving cohabitant were to take the first £250,000.
- Children from the intestate’s previous relationships would be in a particularly vulnerable position, since the surviving cohabitant would have no obligations towards them. Such children would be able to bring a claim against the surviving cohabitant under the 1975 Act to claim an interest in their deceased parent’s estate, but this would simply reverse the current situation where a cohabitant has to claim against the children. The bitterness and difficulty of litigation is likely to be unchanged.
- It is therefore highly unlikely that the proposed reform would lead to any reduction in litigation or court costs. While fewer cohabitants would need to claim under the 1975 Act, their entitlement under the intestacy rules would not be straightforward. The experience of litigation under the 1975 Act shows that the very definition and duration of cohabitation are likely to be contested. To date, the courts have been relatively liberal in determining whether the claimant was living with the deceased as his or her spouse/civil partner, since they have a discretion as to how much to award to a qualifying cohabitant. In one case a woman was held to have been living with a man as his wife even though she had turned down the man’s proposal of marriage and they had not had a sexual relationship while they were sharing a home.[ii]
- The rationale for the proposals is also unclear. If the aim is to protect those who were living with the intestate and dependent upon him or her, then there seems no reason to exclude cases where the intestate was married or in a civil partnership. In addition, given that some individuals may need to satisfy a five-year period of separation before obtaining a divorce from their first spouse, this exclusion may well affect those who did want to marry but were unable to do so before the death of the deceased. Also, there is no requirement that the claimant should not be married or in a civil partnership, raising the possibility of a double entitlement.
- But if the aim is to give effect to the presumed intentions of the intestate, much clearer evidence is needed that cohabitants would wish their partners to have rights in the case of intestacy. Research has found not only that cohabitants are less likely to have made a will in their partner’s favour than married couples, but also that they do not necessarily think that a cohabitant should have any greater entitlement. When faced with a scenario of a woman survived by her partner of 25 years and grown-up children, only 28% of cohabitants felt that the partner should receive the entire estate – significantly fewer than the percentage of married couples who took this view.[iii]
- It is claimed that the proposed reform would bring the law closer to current expectations and public opinion. Again, this is not borne out by research.iii While there is strong public support for a surviving cohabitant to receivesomething, there is considerably less support for him or her to receive everything, as would almost always be the case under the proposed intestacy rules. The only situation in which more than half of those surveyed felt that the cohabitant should receive everything was where the couple had been living together for ten years and had no children. Nor were those surveyed asked to weigh the claims of a cohabitant against children from a previous relationship, although only a small minority support a spouse inheriting everything in such a case.
In short, the complex implications of intestacy for modern family forms are far better dealt with by the existing discretionary regime under the 1975 Act rather than by the automatic entitlements proposed in this Bill.
[i] R Probert, The Legal Regulation of Cohabitation, 1600-2010: From Fornicators to Family (CUP, 2012).
[ii] Re Watson  1 FLR 878
[iii] Inheritance and the family: attitudes to will-making and intestacy (NatCen, 2010).
Dr Samantha Callan
E Mail: Samantha.Callan@centreforsocialjustice.org.uk
The Centre For Social Justice