The legal inequality faced by cohabiting couples was thrust into the spotlight again recently when Emily Thornberry, Labour MP for Islington South and Finsbury, remarked in her Labour Conference Speech on October 2023 that ‘[w]omen in co-habiting couples have been left with no rights when those relationships come to an end. If there is no joint property or shared parental dues, a man can leave his partner with nothing…’.
Whilst the Labour MP’s comments were advanced with a general objective of ‘Making the Law Work for Women’, the intention to review and reform the law relating to cohabitation will obviously have an impact generally on the rights of parties to non-married relationships. Whilst Ms Thornberry’s remarks in this respect appear geared towards rights on separation, it begs the question on whether the rights of a surviving partner upon death in cohabiting couples will also receive the same intended improvements.
As the law presently stands, when one party dies, the surviving partner in a non-married relationship is rendered similarly legally compromised if the deceased failed to make specific arrangements or provision in a will for that person.
A claimant’s entitlement to seek provision from the deceased’s estate in such circumstances is dependent upon their eligibility under Subsection 1(1A) of the Inheritance (Provision for Family & Dependents) Act 1975 (The Inheritance Act) which provides:
“This subsection applies to a person if … during the whole of the period of two years ending immediately before the date when the deceased died, the person was living – (a) in the same household as the deceased, and (b) as the husband or wife of the deceased.”
So, a cohabiting claimant must prove that for at least two whole years ending immediately before their partner’s death, they were living in the same household and ‘as the husband or wife of the deceased’.
The Case of Re Watson (Deceased) considered how the Court is to regard whether two people were living together ‘as husband and wife’. The Court recognised that in asking this question, it should not ignore the multifarious nature of marital relations, which is to say that there is not a ‘one size fits all’ approach to be applied to relationships. Whilst Churchill v Roach gave some non-exhaustive indicators as to how such relationships could be analysed, what Re Watson (Deceased) demonstrates is that each case will turn on its facts.
Conversely, the sanctity and virtue of marriage in the eyes of the law has allowed such a ‘one size fits all’ approach to be applied to married couples, whereupon Subsection 1(1)(a) of the Inheritance Act stipulates that just by virtue of still being married to the deceased at their death (or their registered partner), they are automatically entitled to claim against the estate, if on their view the Will of the deceased (or application of the rules of intestacy) is not such as to make reasonable financial provision for them.
The rights conferred by the Inheritance Act on cohabitating parties pale in comparison to the manner with which the law recognises the rights of a married spouse. In contentious probate claims dealing with non-married (or non-registered) couples, there is a rigorous scrutiny applied to those relationships that is usually entirely bypassed by claims instituted by short-changed husbands or wives.
Going further, what then constitutes ‘reasonable financial provision’ as regards a married couple is “such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance” which provides a surviving spouse with a greater entitlement in terms of a claim, as opposed to a cohabiting partner applying under Subsection 1(1A) by virtue of Subsection 1(1)(ba), which only entitles that individual to “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.”
In the absence of being able to demonstrate the cohabitation relationship envisaged by Subsection 1(1A), a partner to the deceased could otherwise advance a claim on the basis of dependency pursuant to Subsection 1(1)(e), should they be able to prove that they were being maintained by the deceased. To be eligible, “a person is to be treated as being maintained by the deceased (either wholly or partly, as the case may be) only if the deceased was making a substantial contribution in money or money’s worth towards the reasonable needs of that person, other than a contribution made for full valuable consideration pursuant to an arrangement of a commercial nature.”
A claim in estoppel is another avenue of action for a non-married (or non-registered) partner. The circumstances of the parties’ relationship, and promises made by the deceased to the surviving partner that they would be looked after, and how the surviving partner acted in reliance on those promises, might place a claimant in a position to advance an estoppel claim against the estate whereby they seek to enforce that promise. In such a claim evidence of the promise, and how the claimant has acted on it to their detriment, is usually a more insurmountable barrier to traverse than the ‘rules’ imposed by Subsection 1(1A).
Is the simple answer just for romantic couples to get married to protect one another, or otherwise register their partnership?
Until such time as the law in the UK does change to reflect contemporary views and practices on romantic relationships, cohabiting couples ought seriously consider what provision they have made for one another in their Wills, the ownership structure of any shared (or individual) assets, and what evidence they each have of their relationship that demonstrates that they are, ironically, as good as married.
If you wish to discuss any matter relating to this article:-
please contact Jessica Proctor – 01328 621326