The Inheritance (Cohabitants) Bill received its first reading on the 12th January. It is based on a Law Commission Report, Law Com no. 331 (2011) http://www.justice.gov.uk/lawcommission/docs/lc331_intestacy_report.pdf which, after consultation, recommended that the law be changed so that cohabitants would have an automatic claim to the property of their partner if he or she died intestate, provided they had lived together for five years or two years if there was a child of the relationship. Under current law, the surviving cohabitant has no automatic claim on the estate of the deceased if he or she has not made a will. But they can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, and the court will consider whether the surviving cohabitant should receive reasonable maintenance from the estate. In simple language, it is proposed that the surviving cohabitant should have the same claim as a spouse to the estate, and also take all the chattels (personal possessions) of the deceased. The current law of intestacy is that the spouse will take the first £250,000, and anything above that sum will be divided between the spouse and the children. If the deceased left a spouse but no children, the spouse gets the first £450,000 and the rest will be shared with the deceased’s parents, if still living, and brothers and sisters. If the deceased left no spouse the estate goes to other relatives.
So the proposal would take the estate away from children and family and divert it to the surviving cohabitant. At the moment the onus is on the cohabitant to make a claim under the 1975 Act if she has been left nothing; if the law changed, the onus would be on the family to dispute the entitlement of the cohabitant. They certainly would do this, in part because the definition of a cohabitant under the Bill is rather vague and leaves lots to dispute over, and also because there may well be resentment on the part of children and family if a “jilly-come-lately” moves in with the old man five years before his death and takes his property.
Of course if the deceased had made a will, he could leave the property as he wishes. Many more married people make wills than do cohabitants, and it may be that the failure on the part of the latter to do so is precisely because they do not see themselves in that sort of relationship or because they want to preserve what they have for their children from a previous marriage. Of those who responded to the Law Commission consultation, more opposed the change than supported it. But the Law Commission gave greater weight to the views of the organisations that supported it than the ordinary individuals who opposed it.
I have blogged about cohabitation before – (Law in Action 23.11.09, Love and Marriage 7.1.11) – pointing out that people know very well what the difference is between marriage and cohabitation and that most people do not want to have the legal effects of marriage thrust upon them when they have chosen to cohabit in order to avoid these. I have received hundreds of letters from the public saying they do not want cohbitation to become marriage. The recent blogs from readers of the Guardian and the Telegraph make the same point. The law should not force people into a status they do not want. We condemn forced marriages. We should also condemn forcing legal status onto two people who have done their best to avoid it. The Bill would also discriminate against people who live together, but not as spouses, e.g. sisters or lifelong friends. The surviving cohabitant would presumably get the inheritance tax deferment that spouses get at the moment, but which is denied to sisters living in the same house.
This Intestacy Bill is a recipe for trouble. Family disputes will become bitter; older parents will be warned off allowing someone to live in their home and take care of them; there will be no legal aid available for litigation, so the costs will eat up the very assets disputed; and the surviving cohabitant may take all the property away with her to a new relationship without benefiting the children.