Common law misconception

  • Author : Nigel Shepherd
  • Author : Anna Heath
  • Date : March 2010
ABOUT THE AUTHORS: Nigel Shepherd is a Partner and Anna Heath TEP is a Solicitor at Mills & Reeve LLP

The current laws of England & Wales relating to the distribution of an estate leave cohabitants in a vulnerable position. The issue is increasingly important due to a combination of the rising number of cohabitants and the general absence of legal rights for this social group. There are also some dangerous public misconceptions of the law.

Cohabitation is the fastest growing relationship type in the UK and many expect this to continue to rise in the foreseeable future. Government actuaries have calculated that by 2031 there will be 3.8 million cohabiting couples and just 10 million married couples in England and Wales. The number of children being born to cohabiting couples has also risen.

The current law

Under the law of England and Wales, testamentary freedom is a fundamental right. This entitles an individual to put in place a will leaving his or her estate to whomever he or she chooses. However, research shows that around a third of individuals still die each year without a will, in which case the estate is distributed according to the intestacy provisions.

The intestacy rules are designed to make provision primarily for the surviving spouse and children. Crucially, there is no provision whatsoever for a surviving cohabitant, irrespective of how long the couple have been together and whether they have any children.

There are existing legal provisions which can be used by a disappointed cohabitant to make a claim for reasonable financial provision from the deceased’s estate. After a death, a cohabitant (who has been living with the deceased for two or more years as his or her husband or wife) is among certain classes of individuals who have a right to legally ‘challenge’ the distribution of assets, whether by will or the intestacy provisions, under The Inheritance (Provision for Family and Dependants) Act 1975 (the Act). However, an application under the Act can be costly and stressful, with the cohabitants essentially suing their partner’s surviving family and in some cases, even their own minor children. The effect of this can be destructive and does not always result in the distribution that was intended by the deceased.

Leaving a valid and effective will is clearly the best way of ensuring that an individual’s estate is distributed according to his or her wishes.

Crucially, there is no provision whatsoever for a surviving cohabitant [in the case of intestacy]

This is particularly crucial for cohabitants, where it is clear that the law is inadequate. Unfortunately, however, there is a great deal of public misconception about the rights of cohabitants, the result of which is that many individuals do not recognise this necessity.

Public perceptions

A recent survey revealed that over 50 per cent of the population believed that common law marriage still exists and that cohabitants have rights. In fact, this institution hasn’t existed in England and Wales since 1753. It is often a very unpleasant surprise to cohabitants that they cannot automatically claim a share of a home or assets that were in their deceased partner’s sole name, despite the fact that they may have made a financial contribution to the relationship, brought up the children of the couple or sacrificed their career. The Ministry of Justice has been running a campaign called ‘Living Together’ to try and improve public knowledge of the legal rights of cohabitants, but this kind of public information drive is always an uphill battle, with many remaining unaware of their legal position.

These factors have led to calls by many for a change in the law. The most recent British Social Attitudes research undertaken by the National Centre for Social Research showed that nine in ten people think that a cohabiting partner should have a right to financial provision if their relationship is a long-term one, includes children and has involved prioritising one partner’s career over the other’s. The Law Commission has carried out a detailed review of ‘Intestacy and Family Provision Claims on Death’ and its findings and provisional proposals for reform are set out in a consultation paper (the ‘Law Commission Proposals’).

The drive for reform

Central to the Law Commission Proposals in relation to cohabitants is that a surviving cohabitant should be able to share in a partner’s estate without having to go to court. Crucially this would only take effect if the deceased had not made a will. If there were a valid will, these new provisions would not apply and a cohabitant would have to rely on the existing law to make a claim.

The recommendations are that couples who have had a child together or who have lived continuously as a couple for more than five years, should have the same rights on intestacy as spouses. Where a couple have lived together for more than two (but less than five) years up to the date of death, the survivor should be entitled to half of the share of the estate that a surviving spouse would have received. The surviving cohabitant would not be entitled to personal chattels (in the same way as a spouse) in addition to that share, but should be allowed to choose items up to the value of their cash entitlement. The Law Commission has proposed that a cohabitant should not receive anything under the new rules if their deceased partner was still married or in a civil partnership at the time of death, however long they had been living together.

The Family Law Review – the drive for education

However, if the Conservatives come to power, the proposed action may take an entirely different direction. In March 2007, David Cameron pledged to commission a Family Law Review with the aim to help parents stay together and to promote marriage. On 13 July 2009 the Centre for Social Justice (CSJ) published ‘Breakthrough Britain “Every Family Matters” – A policy report by the Family Law Review’ (the report). Note that the CSJ views are not official government policy.

The report stresses the importance of stable family relationships to the development of children and society and argues that marriage forms a better basis for this than cohabitation. The authors write that an intact marriage rather than cohabitation tends to provide more beneficial outcomes for both adults and children alike. Furthermore, it is argued that the public agree. YOUGOV polls in April 2008 and January 2009 found that 57 per cent of people thought that the law should promote marriage in preference to other kinds of family structure, such as cohabitation, and crucially that 58 per cent thought that giving cohabitants similar legal rights to marriage would undermine marriage.

The report goes on to say that the rise of cohabitation in place of marriage is not inevitable and that marriage is still the most common and ideal form of partnership for men and women in Britain. On this basis, it is argued that reform is ‘…unnecessary because practical self-help remedies for cohabitants are already available; and it is dangerous because of the adverse impact on the distinctive status of marriage.’

Interestingly, the report does agree that the current laws are inadequate and unsatisfactory, but does not believe that the answer to the issue is the type of reform proposed by the Law Commission. Instead it is argued that the answer should be to educate the growing number of cohabitants about their lack of legal protection and the available existing remedies.

The future of cohabitation

So, whether or not these proposed reforms are implemented may depend on which government is in power at the relevant time. There seems to be a general agreement that the current protection for cohabitants is inadequate and that great care should be taken not to damage the institution of marriage, which is agreed to have a valid and important role in society. However, there is a disagreement about the solutions to the problem and the effects of the proposed reforms.

Both the Law Commission Proposals and the report agree that the numbers of marriages are declining and that cohabitation is increasing. The statistics do seem to suggest that many individuals are already choosing cohabitation over marriage for a variety of reasons, regardless of the fact that cohabitants have few legal rights. On this basis, there is a strong argument that the reforms would merely be catching up with an existing social trend. Although some may feel that giving cohabitants more rights would encourage more people to opt out of marriage, if this trend does continue, more and more individuals will fall into a legal black hole and suffer accordingly.

In an ideal world these reforms (and the intestacy provisions in general) would be unnecessary as it would be standard practice to make a will. An alternative to the need for reform would be to improve public awareness of cohabitants’ rights and of the importance of making adequate provision for dependants. However, many attempts have been made over the years to improve awareness and yet past experience has shown that these campaigns often fail to find their target audience. This suggests that some form of positive action needs to be taken to protect the vulnerable against economic disadvantage.

If there is one decisive conclusion to be made, it is that reform of the intestacy arrangements for cohabitants is likely to be controversial.


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