Inheritance (Cohabitants) Bill [HL]

Lord Grantchester Excerpts

Friday 19th October 2012 Lords Chamber

[Lord Grantchester]

My Lords, I am aware that I have no experience and little knowledge on this subject so it is with trepidation that I make my few remarks. I approach the Bill in general agreement with the sentiments behind it. After all, it seems very benign. It is always important to recognise the current reality of more and more people’s lives. As I have been asked to act as a trustee for friends’ and relations’ trust settlements, I thought I should look at the Bill to see whether it had relevance to that. It was then that I began to have reservations. I am concerned that I have not seen any thought given to how it may affect the wills and settlements of others. My anxiety stems from the definition of “cohabitant”. In the Bill, it seems to ape marriage and civil partnership, applying to those in a relationship without a marriage or partner certificate.

The primary reason behind the Bill seems to be to save the surviving cohabitant the trouble of making a claim when, after all, the cohabitant did not want to go to the trouble of formalising their relationship. I make this rather provocative remark as I understand that more and more awards are being made against claims coming forward under the 1975 Act. Why not consider other cohabitants who would also be valid, such as friends sharing a property together who could equally claim to be disadvantaged on the death of one of them intestate? The surviving cohabitant may end up losing his or her home.

I have learnt that stringency has been further relaxed in that there is no longer recognition of dependency. However, there is no recognition either that this new provision in giving advantage to one must necessarily disadvantage another. Are these the only considerations? Could the Bill actually do harm? I thought I had better look at the Law Commission report, Intestacy and Family Provision Claims on Death. It was then that I understood why the definition of cohabitant has been so drawn up. It appears that the Law Commission has drawn it up so that cohabitants will be able, at some time in the future, to make claims in any relationship breakdown.

The Bill’s definition makes way for that extension; it is consistent with that objective and would serve as a first step on the path. Paragraph 8.78 on page 167 states,

“we had in mind the Cohabitation Report, in which we recommended that cohabitants who have children together should have an entitlement to financial remedies on separation, and that there be a minimum duration requirement of between two and five years for eligibility for those who do not have children”.

That is very contentious. The report mentions the increase in cohabiting over the past 10 to 20 years. However, trust provisions have a long lifespan and may well have been drawn up with a different outlook than pervades today. I am sure that the noble Lord, Lord Lester, will know far better than me the difficulties, hurdles and complexities in making amendments to settlements which have been silent on cohabitation. What advice would he give a settler who did not intend the desire to help descendants to result in provision being dissipated among cohabitants?

Has the Law Commission undertaken research into cohabitants, in the number and circumstance a person today may have? Your Lordships will recognise that it is barely a year since prenuptial agreements have been recognised in court, which was not a unanimous decision. Presumably, we should also be anxious that people have pre-cohabitation agreements. The objection may be raised that that is irrelevant to the Bill; I contend that that is naive. In reading the Law Commission’s report, I was also struck by the consultation undertaken on the issue. Paragraph 8.36, on page 160, states:

“There is no overwhelming consensus in favour of reform”.

I am concerned that the Bill is premature and needs to be examined for all its implications before proceeding.