Cohabitation: A Contentious Probate Viewpoint

Recently the legal implications of cohabitation have been making the headlines, a number of changes to the entitlement of cohabitees have been made to align more closely with married couples and civil partners.

The Supreme Court struck down in 2017 the requirement for pension nomination forms to be completed for cohabitees to receive benefits. The following year, the Supreme Court ruled that it was illegal to exclude cohabitees from Widowed Parents Allowance (WPA).

In the future, if the Labour Party wins the general election, which is anticipated to occur in 2024, they have promised to modify the laws affecting cohabiting couples.  It has been stated:

“People in cohabiting couples have been left with no rights when those relationships end for far too long.” A person can leave their partner with nothing if there is no joint property or shared parental obligations, particularly if they have the resources to take the matter to court and the partner does not.

TV money-saving expert Martin Lewis highlighted the current hazards faced by cohabitees, saying:

“A point to anyone who is cohabiting; you’re not married, you’re not a civil partner. If you have been living together for 30 years and you’ve got 9 children, it still means nothing. Your partner wouldn’t get anything” (21 November 2023).

Attorneys who focus on will, trust, and estate issues are well aware of the number of cohabitees who are shocked to learn that they have no legal rights upon the death of their partner.

Cohabitees who meet certain requirements, such as residing in the same household as a husband and wife or civil partner for at least two years at the time of death, may be able to file a claim under the Inheritance (Provision for Family & Dependants) Act 1975 (“the Inheritance Act”).

What exactly does it mean to be “living in the same household”?  Here are a few possible outcomes:

  • Spending less than 7 nights a week in the same property;
  • Each party retaining their own property and staying together on alternate nights;
  • One party retaining a property with their children and staying at the other person’s property on child-free days;
  • One party working overseas or in the military;
  • Parents adopting the “nesting” approach to childcare/parenting;
  • One party with overnight caring responsibilities for a relative; or
  • Parties living next door to each other with an adjoining door.

It is necessary for any legislative reform to safeguard cohabitees who participate in the less common types of these living arrangements.

One last thing to consider is the start date of the cohabitation clock.  The date of beginning in marriages and civil partnerships will be specified in detail on a marriage certificates and legal documents; nevertheless, even in cases where parties have a cohabitation agreement, the date on the document may not accurately reflect the start date of cohabitation.  The following are some instances of when cohabitation might start:

  • Removal of single person discount for council tax;
  • Change of address with authorities e.g. DVLA, HMRC; or
  • Moving belongings or a pet into the other party’s house.

The definition of cohabitation “as husband and wife” or “as civil partners” under the present Inheritance Act may be the most complicated.

In contrast to the typical probate issues, we would anticipate testimony from both parties in the event of future disagreements on whether a previous relationship qualified as cohabitation.  In cases of Inheritance Act claims involving the deceased, the claimant may attempt to exploit the lack of proof provided by the deceased.  In our experience, we have encountered the following individuals residing in the same home where one occupant claimed cohabitation following the death of the other:

  • Both parties in a broken-down relationship refusing to move out, with the survivor alleging the relationship continued in secret;
  • Parties keeping entirely separate finances with the exception of utilities, as housemates would;
  • One party frequently going on holidays without telling the other;
  • One party alleging a cohabitee agreement had been procured by undue influence;
  • One party being unable to physically leave the property due to disability;
  • A handyman moving into the house of a dementia sufferer and claiming they had had a “secret relationship”; and
  • Lockdown relationships which were never intended to amount to permanent cohabitation.

If both parties are able to provide their own proof of cohabitation, it will be less likely for one side to be able to misrepresent the nature of their relationship. However, practitioners should be aware of the risks of this happening and carefully consider the evidence, especially if there is an imbalance in the parties’ relationship that would clearly disadvantage the other if it were determined that they are not “cohabiting”.

We have had a number of cases where we have agreed with Pension Companies or previous employer Pension Schemes of a deceased. We have proved successful in releasing pension benefits to cohabitees or indeed other relatives such as children.

Each matter depends on the unique/given circumstances and often means advising the Pension Provider of the current updated legal position.

If you would like any further advice, please do not hesitate to contact us:
3C Legal Limited
Tel: +44 (0) 1684 212147
Mobile +44 (0) 7707 644738