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Cohabitation & Commitment: Inheritance (Provision for Family and Dependants) Act 1975

Miranda Allardice of 3 Pump Court reviews the recent decisions giving guidance as to what constituents cohabitation and the commitment necessary in order to qualify under the Inheritance (Provision for Family and Dependants) Act 1975

Miranda Allardice, 3 Pump Court

Pursuant to Section 1(1)(ba) of the Inheritance (Provision for Family and Dependants) Act 1975 ("the Act") a cohabitee who satisfies certain qualifying conditions is entitled to apply for provision from the estate of his or her deceased's partner. This article reviews the recent decisions giving guidance as to what constitutes cohabitation and the commitment necessary in order to qualify under the Act. This class of applicant now includes same sex cohabitants (see below). The Civil Partnership Act 2004, which comes into force on the 5th December 2005, creates a further new class of applicant.

The statutory provision
Before 1996, it had been necessary for a cohabitant applying under the Act to show dependency upon the deceased under Section 1(1)(e), but, since the amendments introduced by the Law Reform (Succession) Act 1995, such applications now fall within section 1(1)(ba).

In order to qualify as an applicant it is necessary to show that he or she had lived with the deceased:

"during the whole of the period of two years ending immediately before the date when the deceased died"

and that the conditions of the cohabitation had been as follows:

"(a) in the same household as the deceased and
(b) as the husband or wife of the deceased."

The criteria for qualification were adopted from the Fatal Accidents Act 1976. It is therefore necessary to widen the search beyond the Inheritance Act to find relevant judicial guidance.

What is necessary to constitute the same household?
In a society where people may be commitment shy or wedded to their own independence the issue arises with some frequency as to what constitutes "the same household". If, for example, one party has retained a "bachelor pad", can the parties be said to live together in the same household?.

In Kotke v Saffarine [2005] EWCA 221 / [2005] 2 FLR 517, the applicant applied unsuccessfully under the Fatal Accidents Act 1976. The parties each had their own property. The deceased was in negative equity and retained his property in the hope that the market would rise. The deceased's work involved extensive national travel, and he used his property to facilitate that travel. He died in March 2000. The applicant had become pregnant in July 1998, and the couple's commitment and the time spent at the applicant's house increased from that time. The court determined that the couple could not be said to live together prior to July 1998 and that prior to that date the couple had not only two houses but two households. Therefore they had not lived together for two years at the date of the deceased's death. Furthermore, apart from physical presence there had been a degree of reticence from both in respect of their future commitment. This case demonstrates that whilst it is possible for a couple to retain individual properties, they must create one common household.

In the case of Churchill v Roach [2003] WTLR 779, which concerned an application under the Inheritance Act, the middle-aged couple, who owned adjacent houses inched painfully towards cohabitation. They maintained separate domestic economies. They finally embarked upon knocking their two properties into one. Despite this final creation of one household, the requisite two year period in one household was not achieved.

Living together as husband and wife
The legislature did not intend that every house sharer would qualify under the Act. The relationship which gives rise to the physical proximity must have other features. What are the necessary features present if living together as husband and wife? This question was first addressed in respect of the new class of applicants in the case of Re Watson (deceased) [1999] 1 FLR 918. There the applicant had described her relationship as follows: "we were really to the rest of the world man and wife". Mr Justice Neuberger identified this objective feature and adopted the Clapham Omnibus bystander's view of the relationship. The court should ask itself the question:

"whether in the opinion of a reasonable person with normal perceptions, it could be said that the two people in question were living together as husband and wife, but when considering that question one should not ignore the multifarious nature of marital relationships."

In the Churchill case (above) HHJ Norris QC identified the following features which may be found in such a relationship:

(i) elements of permanence
(ii) the frequency and intimacy of contact
(iii) an element of mutual support
(iv) consideration of the degree of voluntary restraint upon personal freedom
(v) an element of community of resources

The issue of the quality of the relationship was examined in the case of Nutting v Southern Housing Group Ltd [2004] EWHC 2982 (Ch) / [2005] 1 FLR 1066. The context in which this question arose was the issue of succession to a statutory tenancy. Had the survivor lived with the tenant as his husband or wife pursuant to Section 17(4) Housing Act 1988? This was a same sex relationship and, consequent upon the House of Lords' decision Ghaidan v Godin-Mendoza [2004] UKHL 30 / [2004] 2 FLR 600, a same sex partner can now succeed to the tenancy. The parties in Nutting both were alcoholics, the survivor had been physically abusive to the deceased. The deceased had taken injunction proceedings to secure the applicant's removal. He was committed to prison for breach of the same, but upon release returned to live with the deceased.

At first instance the Recorder identified a number of indicia that he felt must be met, before qualification:

(a) had they openly set up home together?
(b) was it an emotional relationship involving lifetime commitment?
(c) had the relationship been presented to the outside world?
(d) did the parties have a common life together, domestically and externally in relation to family and friends?

At first instance it was held that only (d) was satisfied and otherwise they were caught in a "repeat cycle of emotional abuse". On appeal it was argued that the cumulative effect of the test was too narrow in today's society. Mr Justice Evans-Lombe held on appeal that the tests at (b) and (c) were apposite, as without a life time commitment "at least at some point in the relationship there is no similarity to marriage". This abusive relationship lacked a sufficient commitment to permanence to meet the test. This is a strict definition of cohabitation, and applied in respect of an extremely unsatisfactory relationship. The concept of avowed life time commitment may be felt by other tribunals to be too restrictive in nature.

Baroness Hale in Ghaidan acknowledged that the following features would result in a conclusion that a couple were "living together as husband and wife":

"what matters most is the essential quality of the relationship, its marriage-like intimacy, stability, and social and financial inter-dependence."

The issue of commitment does feature in determining whether the applicant qualifies under Section 1(1)(ba) of the Act. The recent case law relating to the definition of living together as husband and wife does emphasize that the relationship has to have some features that would be required in a functioning marriage. If the relationship is to qualify there should not be a cynical disregard for the emotional and financial well being of the chosen partner.

Same sex relationships
Post Ghadian, it was legally possible that a same sex couple could indeed "live together as if husband and wife", and so the survivor could qualify as an applicant under the Inheritance Act. There is now a reported decision (albeit at the level of a Chancery Master) of a same sex cohabitee qualifying under the Inheritance Act. In Saunders v Garrett [2005] WTLR 749, the couple had lived together from 1989 until the deceased's death in 2002. The Master had to consider the impact of the Human Rights Act 1998.

The conventional domestic construction of the words "husband" and "wife" is gender specific, consequent upon the decision in Fitzpatrick v Sterling Housing Association [2001] AC 27 HL. The Law Commission in 1995 had failed expressly to provide for the class to extend to same sex couples. The second stage of his decision therefore required the consideration of the impact of the Human Rights Act 1998. A claim for provision under the Act had the effect of engaging Article 8 of the European Convention on Human Rights, relating to his right to respect for his family life and home. There is discrimination between the heterosexual couple and against the same sex couple in contravention of Article 14. Therefore the court had to consider whether it was able to "read up" the legislation so as to comply with the Convention. This could be achieved reading into the words of Section 1(1A) of the Act, living together "as if husband and wife". The applicant therefore won the battle of qualification, but lost the war, because he failed to prove there had been a failure to make reasonable financial provision.

The above decision will be of relevance where the parties fail to register their same-sex relationship as a civil partnership.

Civil Partnership Act 2004
Schedule 4 to the Civil Partnership Act 2004 amends the Inheritance Act, so as to provide that civil partners can apply for provision, on the same basis as heterosexual spouses. There is an important distinction between the levels of provision where there has been a civil partnership as opposed to merely cohabitation. The status of civil partner entitles the survivor to the higher standard of provision, so that the level of provision is not limited to maintenance (see s 3(2) of the Act). The court will check that provision against what would have been awarded had the civil partnership been dissolved, as in the application of the divorce fiction under the Act.

A suspension of the household
The Act provides that the household must have been in existence "immediately before the date when the deceased died". The courts have proved generous in their construction of the word "immediately". The Concise English Dictionary definition is "occurring at once". The court will consider the period of separation and also look at the reason for the physical separation. In Re Watson the deceased died after a period of time in hospital. The fact of his physical removal did not dissolve the household. But for the illness, the parties would have continued to occupy the same property. That period of physical separation may be for many months. In construing the restriction placed by the word "immediately", the Court of Appeal in Jelley v Iliffe [1981] Fam 128, determined that one must look at the settled basis of the relationship, rather than the few weeks leading up to the death. This was in the context of a dependency claim, and an interruption with regard to financial affairs. Where the physical separation is a symptom of something wrong in the relationship, qualification may be more problematic.

A difficult problem issue will occur when the relationship has been volatile and there may have been a physical separation. This was the situation in the case of Gully v Dix [2004] EWCA Civ 139 / [2004] 1 FLR 918. The parties had a relationship for 27 years. The deceased had been an alcoholic. The applicant had lived with him for many years in difficult circumstances. She was advised by her GP to leave temporarily, and three months post separation the deceased died. The applicant's evidence was that she intended to return if his behaviour allowed. This is an example of the merits of the case being an aid to an expansive construction of the word "immediately"! There had been a number of shorter separations, which had ended in reconciliation when the deceased vowed to give up drink. It was held that the relationship was suspended, rather than extinguished, and therefore the formation of the household continued. As Lord Justice Ward commented:

"so the steadfastness of a commitment to live together may wax and wane, but so long as it is not extinguished it survives".

The Judge at first instance was entitled to conclude there had not been an irretrievable breakdown in the relationship, and therefore the applicant qualified as a cohabitant. History does not relate what provision the long suffering cohabitant secured.

Once the applicant has qualified as an applicant, there still remain the two questions:

1. Has there been a failure to make reasonable financial provision

and if answered in the affirmative

2. What constitutes reasonable financial provision?

Currently the surviving cohabitant's claim is confined to provision for their maintenance only, with no concept of entitlement to family assets. The whole question of rights and obligations following the termination of the cohabitation, is finally under review (see the Law Commission's project: Reforming Cohabitation Law). The relationships under consideration should have the common "hall marks of intimacy and exclusivity" according to Stuart Bridge Law Commissioner.

The invitation issued by Christopher Marlowe in the 17th century; "Come live with me and be my love" if accepted in the 21st century, should carry with it clear mutual responsibilities in life and death.

Miranda Allardice, 3 Pump Court
November 2005