Cohabitees and Claims under the Inheritance (Provision for Family and Dependants) Act 1975

As our society has changed, so the institution of marriage seems to have lost its appeal for many couples.

There are, of course, often conflicting views as to whether this is a good or bad thing. Harry Benson, of the Marriage Foundation, has been quoted as saying: “Future generations will not thank us for our foolish disregard for commitment and stability.”. Further, the Coalition for Marriage wants the Government to “stop pandering to a minority who say all relationships are equal and start backing marriage within the education and tax systems.”

On the other hand, the Reverend Dr Sandra Millar, the Church of England’s head of weddings, has found that those couples who do choose to marry are generally taking this commitment seriously and really wanting to make it work.  She says that, “Where once couples might have seen marriage as the beginning of their life together, now they see it as the crown on their relationship.”

The reality of changing family structures

Whatever our opinions upon the decline in marriage and change in family structures might be, it is difficult to avoid the seemingly inevitable demographic reality. Data released by the Office for National Statistics (ONS), indicating that cohabiting couple families were the fastest growing family type in the UK in 2014, confirms that there are presently more than 2.3 million unmarried cohabiting couples in the UK; set to rise to 4 million by 2033.

The marriage rate – the number of people who wed among those available to do so – is in fact the lowest since matrimony records were first collected in 1862. The idea of marrying at all has fallen out of favour among the young, while women are waiting longer than ever to wed – in 2015, for example, only four in ten brides in England and Wales were under the age of 30.

There may well be several reasons behind the decline in the popularity of marriage; the difficulties young couples face in raising the finances to buy a marital home is certainly likely to be one of the reasons many couples choose to delay matrimony.

Does awareness keep pace with changing attitudes?

The worrying reality revealed by various surveys is that, while the legal system seems to be slowly moving towards allowing cohabitees equal recognition in law, in the meantime the population is confused about its rights or assumes that things are changing much more rapidly than, in fact, they are.  For example, more than 51% of people questioned by the British Social Attitudes Survey about cohabiting couples think that long–term unmarried couples have the same legal rights as married couples.

The myth of ‘common law marriage’ still persists in the public imagination, despite the fact that there is no such thing in UK law.  An alarmingly high number of people remain unaware that there is no automatic right of inheritance against their partner’s estate and of the vulnerable position they may find themselves in if their partner has not made a will benefitting them.

Recent research carried out by  Direct Line suggests that cohabitees remain likely to suffer all the emotional turmoil and bitter disappointment associated with intestacy since, while more than half of married people in Britain have drawn up a Will, just 26% of cohabiting couples have done so.

Increasing cohabitee use of the Inheritance (Provision for Family and Dependants) Act 1975?

Until the legal system catches up with changes in society and considers a cohabiting relationship equal in every respect to a marriage in law, one practical consequence may well be the increasing use of the Inheritance (Provision for Family and Dependants) Act 1975 by cohabitees.

High profile cases, such as Ilott v The Blue Cross and others [2017] UKSC 17, have made many more people aware of the 1975 Act and the fact that certain categories of people can make an application to the Court for ‘reasonable financial provision’ to be made for them from an estate. Exactly how ‘reasonable’ that financial provision may be is still a matter of interpretation, however many more cohabitees appear to now realise that it is possible to use the 1975 Act in their own circumstances; even when there is no will.

A surviving cohabitee is entitled to bring a claim against their late partner’s estate under the 1975 Act provided they and their partner had been cohabiting as husband and wife in the same household for at least two years immediately prior to the death.  In recent years the courts have adopted a broad interpretation of ‘the same household’ to reflect the various different ways in which people live their lives and cohabit.

Such claims are assessed on the basis of what is reasonable for the partner to receive for their ‘maintenance’. This is a higher standard than that applied in spousal claims (where the test is simply what is reasonable for the spouse to receive in all the circumstances of the case).

Recent Case Law

A landmark Court of Appeal ruling in November 2017, in the case of Jacqueline Smith v Lancashire Teaching Hospital NHS Foundation Trust & Others [2017] EWCA Civ 1916, held that the provisions of the Fatal Accidents Act 1976 which allow cohabitees to claim for dependency, but which do not allow a claim for bereavement damages, are incompatible with the European Convention on Human Rights.  It is now for Parliament to scrutinise and amend the relevant provisions of the Fatal Accidents Act, pursuant to which bereavement damages may potentially be payable to cohabitees in the future.

The Court has generally adopted a sympathetic approach over recent years to claims by cohabitees under the 1975 Act:

  • In Negus v Bahouse [2008] 1 FLR 381, the claimant was in a relationship with the deceased for nine years.  The deceased’s net estate, worth £2.2 million, was left entirely to his son.  The court upheld the claimant’s claim and transferred to her, free of mortgage, the flat she had shared with the deceased, which was owned in the deceased’s sole name and valued at approximately £400,000; together with a lump sum of £240,000.  This was to provide a standard of living for the claimant equating to that which she had enjoyed during the deceased’s lifetime.
  • In Cattle v Evans [2011] EWHC 945, the claimant Christina (Tina) and the deceased had been co-habiting. The deceased died intestate, leaving two adult children – Paul and Gareth – who inherited his estate under the Intestacy rules. Although Tina owned a property, her financial position was precarious and she was unable to work.   Prior to his death the deceased had purchased a property in Wales in which he and Tina were living.  If she was forced to move out, she would have to move back to her own property and claim benefits.
  • Whilst the court found that Tina had not been frank with regard to financial matters, nevertheless it held that reasonable financial provision had not been made for Tina’s maintenance and, whilst transfer of the Welsh property would be excessive, a suitable property could be purchased for around £110,000 closer to Tina’s children in Northampton; it was held that this should be purchased and held on trust for Tina for life, with remainder to the deceased’s sons, who were also to receive the balance of the estate.
  • In Swetenham v Walkley & Bryce [2014] WTLR 845, the claimant Beryl Swetenham was in a 30-year relationship with the deceased. They kept their financial affairs separate and the deceased owned his own property. The court held that a second home was not a barrier to living in one household. The judge stated that, while there was an informality in the financial arrangements, it was Beryl’s house that functioned as the ‘family home’.  She carried out all those things that a woman of her generation would have considered it natural to do for the man in her life.  The Judge concluded that the couple had lived together as husband and wife in the same household for the purposes of the 1975 Act, despite the apparent lack of sexual relations between them. An award was made to enable Beryl to purchase a heightened care plan to cover her increased care needs and to allow for other contingencies.  A total award for Beryl’s maintenance was made of £201,219.
  • Martin v Williams [2017] EWHC 491 (Ch) was fairly unique in that the defendant was a spouse (the claimant being the deceased’s partner). Mrs Martin was still legally married to Mr Martin when he died, although they had lived separately for years. By his will of 1986 he left the entirety of his residuary estate to Mrs Martin. However Mrs Williams had lived in the same household as Mr Martin for a number of years as his ‘wife’ in a property they owned as tenants in common, with shares of 50% each.
  • When he died, Mr Martin’s interest in the property would have passed to Mrs Martin. Understandably unhappy with this arrangement, Mrs Williams commenced proceedings under s.2 of the Inheritance (Provision for Dependants) Act 1975 for ‘reasonable financial provision’ to be made for her out of Mr Martin’s estate.  The trial judge ruled that Mr Martin’s 50% share in the property should be transferred to Mrs Williams.
  • Mrs Martin appealed to the High Court, who noted that Mrs Williams had an inherited 50% share in a property in Bristol, valued at over £150,000, in which her sister lived and over which she could exercise a power of sale. The original trial judge had disregarded this asset, but on appeal the judge felt this was highly material.  Further, the High Court found that the provision made by the trial judge was in excess of what was necessary, the judge having understated Mrs Williams’ financial position and overstated Mrs Martin’s.
  • Notwithstanding this, however, the trial judge’s conclusion that the will had not made reasonable financial provision for Mrs Williams’ maintenance was upheld, since Mr and Mrs Martin were separated and – in all but law – divorced.  Mr Martin and Mrs Williams had lived as man and wife and Mr Martin had contributed towards the household.
  • Instead of there being a re-trial, both parties agreed to abide by the High Court judge’s discretion, which was not to transfer the entirety of Mr Martin’s 50% share of the property, but instead to grant Mrs Williams a life interest in that share, with all other rights (specifically the reversion of that interest) to vest in Mrs Martin.

Prevention or Cure?

Most of the above cases pre-date the Supreme Court decision in Ilott v The Blue Cross and others.  We may well see less generous awards under the 1975 Act in the future, in light of that landmark ruling.

Reform of the Intestacy Rules has been proposed for cohabiting couples, such that a surviving partner would share in their deceased partner’s estate automatically, without having to make a formal 1975 Act claim.

Changes are also recommended to the 1975 Act in relation to unmarried couples with children, suggesting that they could bring a claim without any qualifying period being necessary; i.e. the two year rule would not apply to cohabitants with children.

However, until the government brings the law into line with the realities of modern family life, it is likely that we will see many more claims by cohabitees under the 1975 Act.  In the meantime, the best course of action, irrespective of marital status or family structure, is for everyone to make a proper will – something sadly too few of us do.