Prior to the debate on the Arbitration and Mediation Services (Equality) Bill reported here, the House of Lords gave a second reading to another Private Member’s Bill, the Inheritance (Cohabitants) Bill of Lord Lester of Herne Hill. The object of this Bill is to ‘to make provision about the property of deceased persons who are survived by a cohabitant’, and whilst the substance of the proposed provision is beyond the scope of this web log, the issues leading to its introduction and the related considerations concerning long-term relationships are pertinent to the current debate surrounding equal civil marriage, and beyond.
In comparison to married couples and those within civil partnerships, cohabitants have fewer rights and responsibilities, reviewed here in a recent House of Commons Library Standard Note. However, their numbers are significant. The 41st edition of the ONS publication Social Trends (14 April 2011) indicates that together with lone parent families, they accounted for 7.5 million people, i.e. ~15 per cent of all those living in families in the UK. For comparison, in the same year there were ~45,000 civil partnership families and ~ 51,000 same sex cohabiting families.
In 2007, the Law Commission published Cohabitation: the financial consequences of relationship breakdown which recommended the introduction of a new scheme of financial remedies for cohabitants on separation, although it did not consider that cohabitants should be given the same rights as married couples and civil partners in the event of their separation. The report has been considered by both the previous and the present government, here and here, and has been the subject of Lord Lester’s earlier private Member’s bill in December 2008, here, and in March 2009 by Mary Creagh under the Ten Minute Rule, here.
Although the current Bill focused on issues of inheritance, it was suggested in the debate that the broader concerns of cohabitation might be considered in a further Bill ‘to give effect to the Law Commission’s proposals on that wider issue of cohabitation rights’ as part of the wider debate on the institution of marriage, proposals for ‘equal civil marriage’ and the position of civil partnership.
Nevertheless, Government support during the present parliamentary term seems unlikely.
Marriage, civil partnership and cohabitation
In terms of the tranche of law concerning couples in long-term relationships, that associated with cohabitation is in need of reform on account of: the acknowledged difficulties with the existing provisions; and the significant numbers of couples involved. Nevertheless, whilst cohabitation is becoming increasingly acceptable, a recent YouGov Poll suggested that public opinion favours legislation which promotes marriage in preference to other kinds of family structure, and giving cohabitants similar legal rights as the married would undermine marriage and make people less likely to wed, here.
The importance of the institution of marriage was highlighted by a number of speakers in the debate, and the Bishop of Manchester outlined the dilemma facing the Church,
‘Our starting point was, and is, that marriage is central to the stability and health of human society, in particular, the faithful, committed, loving, permanent and legally sanctioned relationship between a man and a woman which marriage affords and which continues to provide the best context for the raising of children … Nevertheless, as the General Synod affirmed in 2004, the Church of England recognises that there are some issues of hardship and vulnerability for people whose relationships are not based on marriage and that they need to be addressed by the creation of new legal rights.’ [col. 1665].
Whilst welcoming the guiding principles behind the Bill, the Bishop questioned addressing intestacy in isolation, and also the rationale of introducing a legislative construct whereby
‘[t]he partners would in effect acquire a de facto legal status simply on the basis of things that they had done – living together, becoming parents – but without having made any particular formal commitment to one another and without voluntarily taking a particular status upon themselves.’ [col. 1667].
The potential complexity of granting legal rights to cohabitants in relation to inheritance was highlighted by Baroness Deech who said:
‘if these proposals [within the Inheritance (Cohabitants) Bill] were to go ahead, we would have a society containing separate regimes for heterosexual and, maybe in future, same-sex marriage, civil partnerships and cohabitation, and family members living together, all with different rights and duties.
We need a complete, unified appraisal of all such relationships and no more piecemeal tinkering with legal rights deriving from different forms of sexual relationships that attract attention at any time.’ [col.1661]
Whilst such an unified approach appears to be more logical, the rationale for this separate Bill on inestacy was the Law Commission’s recognition of the controversial issues associated with cohabitation
In his summing up, Lord McNally, Minister of State, Ministry of Justice, noted the Law Commission’s observation that ‘this issue has the potential to be divisive and contentious’. An example of the implications of the current Bill as drafted would
‘[put] certain cohabitants on the same footing as spouses and civil partners in relation to intestacy would significantly shift the boundaries of what the average person is deemed to be likely to want to happen with his or her estate,’ [col 1678]
‘equate the position of some [co]habitants with that of spouse and civil partners under the intestacy rules and improve their position under the 1975 Act. Certain cohabitants would therefore be promoted above blood relations on intestacy.’ [col 1679].
Lord McNally’s instinctive position was to want to support their proposals, he felt that they should be addressed as ‘part of a more comprehensive and considered approach to these issues.’ Although the Government did not intend to oppose the Second Reading, he re-iterated its position announced in September 2011 that,
‘[it] did not intend to take forward the Law Commission recommendations for reform of cohabitation laws in this parliamentary term. Proceeding with the present Bill would separate out the law relating to the ending of a cohabiting relationship during life and on death. This is not to suggest that the law in these situations is perfectly aligned at present, but it will be considerably less so if this Bill is enacted. I am not certain that this will be a good development.’ [col.1679].
Are the current intestacy rules insufficiently generous?
There is a further subsidiary issue that needs to be addressed as part of any overall package: the present rules of intestacy themselves. In December 2011 the research conducted as a background to the Law Commission’s report on Intestacy and Family Provision Claims on Death concluded that the current law of intestacy and family provision claims on death was “outdated, confusing or places unnecessary obstacles in the way of those with a valid claim to share in a deceased person’s assets.” The Commission itself also noted that the persistence of the myth that English law recognises the relationship of “common-law spouse”.
The Commission published a draft Inheritance and Trustees’ Powers Bill that would have made an intestate’s spouse or civil partner the sole beneficiary unless there were children or other descendants. In addition, if there were children, the spouse or civil partner would – as now – receive a statutory legacy from the estate plus half of the residue: but that share of the residue would be inherited outright instead of as a life interest held in trust. The Commission also wanted the Inheritance (Provision for Family and Dependants) Act 1975 amended to allow a family provision claim to be brought by someone claiming to be a dependant of the deceased even if the deceased did not assume responsibility for that person’s maintenance.
One argument advanced against further relaxation has tended to be that people should be encouraged to make wills and that if the rules on intestacy are relaxed to any great extent they will have no incentive to do so. However, the Law Commission estimates that in 2010 about half of those who died in England and Wales were intestate: see Intestacy and Family Provision Claims on Death: impact assessment (para 27). Is there any reason to suppose that very many of them read the rules on intestacy and made a conscious decision not to make a will? One’s suspicion is that the more likely explanation for intestacy is a reluctance to contemplate one’s own death.