Inheritance (Cohabitants) Bill [HL]

Baroness O'Loan Excerpts

Friday 19th October 2012 Lords Chamber

[Baroness O'Loan]

My Lords, the issue of what happens to cohabitants of long standing who are left behind when their partner dies is one which has caused problems for thousands of people over the years. The Law Commission undoubtedly recognised that in its 2011 report. The noble Lord, Lord Lester, does a public service in introducing this Bill, which is carefully worded by the Law Commission to provide limited protection for surviving cohabitants and their children and recognises the rights of surviving spouses and civil partners and any children. I am pleased to support the principles articulated in this Bill. This is not a new matter and there has been speculation in the public domain for many years about whether any Government would ever have the courage to tackle this issue. The Bill is concise and carefully drafted so as to give effect only to the recommendations made by the commission.

There can be little doubt that there are now many people for whom cohabitation is the preferred choice of living arrangements. The 2011 Office for National Statistics report states that the number of cohabiting couples rose by 34%, some 292,000, and that the number of partners in marriage or civil partnership with dependent children fell by 319,000. The evidence shows that, for many people, living together is not just a temporary trial-run situation but rather that there are people for whom this is a life choice. Some 2.9 million couples have made this decision, according to figures released in 2012. In 2011, 38 per cent of cohabiting couples were parents—the same percentage as married couples with children—and 31 per cent of live births in 2010 were to women cohabiting with but not married to their partner, up from 25 per cent since 2001. The choices made by such people have consequences, which may be way outside their comprehension or expectation and which will affect not only those in the cohabiting relationship but the children of such relationships. Our social structures are clearly changing.

We also have some 7.6 million marriages or civil partnerships without children. Not all marital relationships have children and not all cohabitees have previously been married. Intestacy could simply result in an estate reverting to the state because there is no surviving spouse or children or others entitled to inherit under intestacy. It is a wider issue than the children of an existing marriage. We talk loosely of common law marriage and, as noble Lords have said, there are assumptions that rights exist in this context. Yet for intestacy purposes there is no such category as common law marriage. If one partner in a cohabiting relationship dies intestate, his estate will be dealt with in accordance with the law, and the law makes no current provision for cohabiting partners or the children of such relationships. They have no inheritance rights and probably will not know that they have the right to make an application to the court under the Inheritance (Provision for Family and Dependants) Act 1975 for an order varying the distribution under the intestacy rules or indeed, if there is a will, under that will. As has been said, they may well be reluctant to pursue such an application, given the inevitable public disclosure of their situation, the costs, the familial and other unpleasantness that may ensue and the uncertainties of any such action.

All those difficulties will be compounded by recent changes to legal aid. Those who have married will no longer have legal aid support when the marriage that was for life proves not to have been so and to have broken down. As a consequence, there are many situations that will leave more people in the situation where they cannot effectively leave their marriage, and they will be left with no option other than cohabitation. What will happen at present in most cases where there is intestacy is that those people will have to leave the house that has been their common home, often for decades. They will be left without any inheritance where the deceased has not made a will to indicate how he or she intends to dispose of his or her assets. That will almost inevitably lead to significant hardship. The reality is that the majority of people in this country do not leave more than £250,000 when they die, and that significant hardship may well not have been what the deceased would have wished to see.

The Bill introduced by the noble Lord, Lord Lester, proposes not that all cohabitants should have a right to inherit but rather that only qualifying cohabitants should be so entitled. The definition of “qualifying partners” is tightly drawn to include those who have lived together for a period of five years or a couple who have lived together for two years and have a child or children born on or before the date of death of the deceased partner who was living with the deceased at the time of death, so there are many conditions that must be satisfied.

The periods involved are relatively short, given that the effect of the Bill may be to deprive those who under the current law would be entitled to inherit any estate. It is important to recognise that effect. There will be cases, however, where those who are entitled under current law to inherit have no knowledge of the existence of the cohabiting spouse and the children who would now become entitled to inherit. That is a profoundly difficult situation. However, this is about securing a balance in competing rights in order to bring greater equity to the situation.

I accept all the evidence that shows that marriages last longer than cohabiting relationships, but there are cases where, for a variety of reasons, people who have previously been married are unable to secure a divorce for very long periods and, as a consequence, may be forced into cohabitation. People are making choices that leave them vulnerable and, very often, significantly disadvantaged. On death, it may emerge that a couple whom everyone thought were married had in fact been cohabiting for decades. The surviving cohabitee will face a change in their life situation that will go far beyond the loss of their partner.

The Bill simply seeks to treat cohabiting partners in the same way as those who are married or in civil partnerships for the purposes of intestacy, provided that they satisfy the conditions, and to extend the range of individuals entitled to claim under the Inheritance (Provision for Family and Dependants) Act 1975. In the interests of consistency, it would be desirable that the proposed rights under Clause 1(7) extended not only to cohabiting partners but also to the issue of such relationships in the same way as new subsection (1C) of the Inheritance (Provision for Family and Dependants) Act to enable all the parents of children to benefit, including those children who were en ventre sa mere at the time of death.

I am a passionate supporter of marriage; I have been married for 37 years, and I worked for about 16 years preparing young couples for marriage. The Bill seeks to provide necessary protection. If the Bill is not the route, then I submit that there are very serious issues that require to be addressed in this context.