Cohabitation:  A Contentious Probate Perspective

The legal implications of cohabitation have been making headlines recently, with a number of changes to the entitlement of cohabitees to bring them more in line with married couples and civil partners.

In 2017, we saw the Supreme Court disapply the requirement for pension nomination forms to be completed for cohabitees to benefit.  The following year, the Supreme Court deemed that the exclusion of cohabitees from entitlement to Widowed Parents Allowance (“WPA”) was unlawful, paving the way for WPA to be replaced in 2023 with the Bereavement Support Payment scheme.

Pausing there, an estimated 21,000 households might be entitled to backdated payments; the deadline to claim is 8 February 2024.

Looking ahead, the Labour Party has pledged a reform of law affecting cohabiting couples if they are successful at the General Election which is likely to take place in 2024.  Speaking in October 2023, the Shadow Attorney General, Emily Thornberry MP, said:

“For too long, women 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, especially if he has the means to take it to court and… she does not.”

TV’s money-saving expert Martin Lewis has also drawn attention to the current risks to cohabitees on his Money Show Live, saying:

“A special point to anyone who is cohabiting; you’re not married, you’re not a civil partner.  If you have been living together for 30 years and you’ve got 9 children, it still means nothing.  Your partner wouldn’t get anything” (21 November 2023).

Lawyers specialising in will, trust and estate disputes know all too well the number of cohabitees taken by surprise at their lack of legal rights upon the death of their partner.

The Inheritance (Provision for Family & Dependants) Act 1975 (“the Inheritance Act”) provides some degree of protection for cohabitees meeting certain criteria, namely that can bring a claim if they have been living in the same household as if they were husband and wife or civil partners for at least 2 years at the date of death.  In cases where a cohabitee cannot meet the criteria, they may have an alternative claim as a person maintained by their deceased partner. The Court will consider reasonable financial provision from the estate based on what is required for the claimant’s maintenance, not their current lifestyle.

The questions which arise in contentious probate disputes in determining if a person qualifies as a deceased person’s cohabitee under the Inheritance Act can be a useful touchpoint in considering any future changes to the current legal framework for living cohabitees.

Firstly, what constitutes “living in the same household” when the housing arrangements and lifestyles of modern families vary significantly?  Some potential scenarios might be:

• Spending less than 7 nights a week in the same property;
• Each party retaining their own property and staying together on alternate nights;
• One party retaining a property with their children and staying at the other person’s property on child-free days;
• One party working overseas or in the military;
• Parents adopting the “nesting” approach to childcare/parenting;
• One party with overnight caring responsibilities for a relative; or
• Parties living next door to each other with an adjoining door.

Any legal reform will need to carefully define what amounts to “the same household” to protect cohabitees engaging in the less common forms of these living arrangements.

A further question to address is when does the clock start on cohabitation?  In marriages and civil partnerships, the date of commencement will be clearly defined on a legal document, but even if parties have a cohabitation agreement the start date for cohabitation might not be reflected by the date on the document.  Possible examples of when a cohabitation might begin include:

• Removal of single person discount for council tax;
• Change of address with authorities e.g. DVLA, HMRC; or
• Moving belongings or a pet into the other party’s house.

If legal reform will provide safeguards only after a certain time-period, clearly defining the commencement of cohabitation would give certainty and potentially avoid future disputes.

Perhaps the most complex assessment of cohabitation as currently defined in the Inheritance Act is what amounts to living “as husband and wife” or “as civil partners”.  In the case of Re Watson, Neuberger J directed us to consider normal perceptions and the opinion of a reasonable person but he warned that we should not ignore the “multifarious nature of marital relationships.”

HHJ Judge Norris KC gave further guidance in Churchill v Roach, indicating that we should take into account elements of permanence, elements of mutual support, community of resources, the degree of voluntary restraint on personal freedom and the frequency and intimacy of contact.  In that case, the claimant didn’t succeed on their cohabitee claim because there were “two separate domestic economies” but they succeeded on claim as a person maintained by the deceased.

If there are future disputes in relation to whether a former relationship amounted to cohabitation, we would expect there to be evidence from the two parties instead of only one witness, which is usually the case in contentious probate disputes.  The lack of evidence from the deceased in Inheritance Act claims can result in attempts by the claimant to take advantage.  Throughout my many years of experience in this specialism, I have come across people living in the same property where one occupier claimed cohabitation after the death of the first, including:

• Both parties in a broken-down relationship refusing to move out, with the survivor alleging the relationship continued in secret;
• Parties keeping entirely separate finances with the exception of utilities, as housemates would;
• One party frequently going on holidays without telling the other;
• One party alleging a cohabitee agreement had been procured by undue influence;
• One party being unable to physically leave the property due to disability;
• A handyman moving into the house of a dementia sufferer and claiming they had had a “secret relationship”; and
• Lockdown relationships which were never intended to amount to permanent cohabitation.

It is hoped that when both parties are able to present their own evidence of cohabitation, there will be less scope for one party to misrepresent the nature of the relationship unopposed. However, practitioners should be alert to the risks of this occurring and apply proper scrutiny to the evidence if law reform does take place, particularly if there is an existing imbalance in the parties’ relationship which would put one at a clear disadvantage if they were found not to be “cohabiting” in accordance with some future definition of what that means.