Inheritance (Cohabitants) Bill [HL]

Lord Bishop of Oxford Excerpts

Friday 19th October 2012 Lords Chamber

[Lord Harries of Pentregarth]

My Lords, for a variety of reasons, spiritual human and societal, I, too, am a strong supporter of the institution of marriage, but I recognise that there are other kinds of relationship which give rise to responsibilities and rights for which it may be appropriate that legal provision be made. One of them is the situation which the Bill is intended to address.

Unlike some of your Lordships, I do not believe that making appropriate legal arrangements to safeguard the position of a surviving cohabitee and, where present, any children, in any way undermines or weakens the institution of marriage. Marriage is too robust for that, and I am sceptical of the idea that making the actual provision for a surviving cohabitee lessens the incentive for people to get married in the first place. I do not believe that people get married for financial motives. I have no difficulty in imagining and understanding the situation of someone dying intestate. Let us say that the couple are in their 30s, they have lived together for two years and have just had a child. The idea of making a will was the last thing on their minds. Then the main earner gets killed in a car accident. In such a situation, it is entirely reasonable that the law should make it as straightforward as possible for the surviving cohabitee to claim what money is available for the support of themselves and the child.

The Centre for Social Justice has produced a very useful briefing paper, raising a number of doubts about this Bill. It seems to raise two questions in particular that are very important for us to address. The first concerns the position of any other children who the deceased might have. Do not they have first call on any available money? This has of course been raised very powerfully by the noble Baroness, Lady Deech. However, as that paper sums it up succinctly:

“Children from the intestate’s previous relationships would be in a particularly vulnerable position, since the surviving cohabitant would have no obligation towards them. Such children would be able to bring a claim against the surviving cohabitant under the 1975 Act to claim an interest in their deceased parent’s estate, but this would simply reverse the current situation where a cohabitant has to claim against the children. The bitterness and difficulty of litigation is likely to be unchanged”.

I entirely agree that children from any previous relationships have a claim but the question is whose is prior: those children’s or that of the surviving cohabitee and any children of that relationship?

It is reasonable to assume that the relationship the person was in at the time of death is the one to which the deceased would have given priority. After all, at the time of death that is where they were physically committed. We cannot speculate on what was going on in their mind but we know for a fact that they were living together, had done for some time and may have had a child together. I agree that under this Bill there will continue to be the possibility of legal dispute if there are any other children who claim under the 1975 Act. However, it seems that either way, whether we go with this Bill or some alternative that gives a prior assumption to a claim of the children of previous relationships, there is always the likelihood or the real possibility of litigation. It seems there is no escaping that. The question is where the first claim on the estate should lie. I suggest that it should lie, as this Bill assumes, with the surviving cohabitee and any children of that relationship.

The noble Baroness, Lady Deech, raised the particular question of the children from a previous relationship who might, for instance, be expecting some help for their university education—an understandable situation. However, let us suppose that the first marriage had ended in divorce after 20 years and that the children are now perhaps 17 or 18 and waiting to go to university. In that situation, it seems highly likely that the couple will already have made a will. If the new relationship had lasted for five years, again, there would have been plenty of time during that period for the previous wife and husband and their children to have negotiated the financial aspects of the will. While that is a very real issue to consider, it is perhaps not as pressing as the situation that I mentioned before.

The second point that I wish to address from the briefing paper concerns the situation of the deceased cohabitee still being married or in a civil partnership with someone else; at least, they were before they died. In such a situation the Bill makes it clear that the surviving partner would not be the immediate beneficiary, and it is right that they should not be. If a marriage or civil partnership still legally exists—however broken in reality—that is where the priority for the estate rightly lies. The briefing paper comments:

“If the aim is to protect those who were living with the intestate and dependent upon him or her, then there seems no reason to exclude cases where the intestate was married or in a civil partnership”.

However, as I have suggested, those cases should be excluded. It is therefore true that the Bill will not give total protection to the surviving cohabitee but the point is whether it will give as much protection as possible, given all other legal considerations. Other legal obligations quite rightly have to be taken into account: in this case, the existence of a previous marriage or civil partnership. The issue is not whether it gives protection in all possible circumstances but whether it gives the maximum possible, taking other legal obligations into account.

The right reverend Prelate raised doubts about giving some kind of legal status to cohabitation and prefers an alternate system where an order might be made if the person is in need. However, it seems that the advantage of this Bill is that if a person dies suddenly, at least there will not be a protracted period before such an order is made. They will have some sense of financial security almost at the moment that they learn of the death and what the legal situation is.

I am happy to support this Bill, which may not affect vast numbers of people but will enable some to be more financially secure than they are at the moment. I think of the person who suddenly loses the person they have been making their life with, while expecting that life to go on, and it therefore never crossing the mind of either of them that they ought to make a will. They may have been imprudent but that is not the point; the law can make provision for them and I believe that it should.