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31/01/2012 - Proposed change in law may benefit cohabitants

In January, a new draft bill was introduced in the House of Lords which if passed could dramatically change the legal rights of a cohabitant in the event of their partner's death. This reading of the Inheritance (Cohabitants) Bill 2012 marked the first stage of the Bill's journey through the House of Lords.

Why is the Bill needed?

Cohabitees can face a precarious financial position if they are unmarried and one partner dies without making a will, especially where they may have joint financial obligations, such as in relation to a mortgage or children.

There is sometimes a misconception that cohabitants enjoy a "common law marriage,” which will provide them with the same inheritance rights as married couples/civil partners in the event of one partner dying without leaving a will. Yet the reality is that the intestacy rules in England and Wales do not provide for cohabitees to automatically receive any portion of their partner's estate.

So if there is no will a cohabitee might currently have to bring a claim against their partner's estate for ‘reasonable final provision' under the Inheritance (Provision for Family and Dependants) Act 1975. To qualify to bring such a claim they would either have to show that they were living with the deceased during the two years immediately prior to their death as "husband and wife”, or prove that they were financially dependent upon them.

The burden in proof is on the cohabitant to show why reasonable financial provision should be made for them from the estate. This can be a costly and time consuming exercise and will often need to occur at a time when they have just suffered from a major bereavement.

What are the changes?

Two of the main proposed changes are of particular interest to cohabiting couples.

The first provides that, in addition to spouses and civil partners being able to benefit under the intestacy rules, a "qualifying cohabitant” may also be able to benefit. To qualify, a cohabitant must have been living with their partner as though they were their spouse/civil partner during the whole of the five years immediately prior to their partner's death. Alternatively, the cohabitant could qualify if they are:

1. the other parent of a child of the partner who has died; and
2. the child is living in the same household as the cohabitant; and
3. the cohabitant lived in the same household as their partner, during the two years immediately prior to their partner's death.

The second key change relates to claims under the 1975 Act. Under the proposed Bill, if the couple have a child at the date of one partner's death and they were living as ‘husband and wife', the two year period of cohabitation is not apparently required.

If the Bill is passed, it would therefore represent some significant progress with regard to protecting the rights of unmarried couples on the death of one partner.

Published by:

Victoria Jones (show profile)

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News (show all News)