Our client was in a violent unmarried relationship with Martin for a total of 5 years punctuated by numerous short periods of separation the last separation being some three weeks ago. It is assumed that when they were together they lived as husband and wife. It is further assumed that there were no children. Martin died 3 days ago. It is assumed that he either died intestate or that, if he left a Will, it failed to make reasonable provision for Olivia. Having enjoyed a good standard of living during the relationship “as a consequence” of Martin’s financial resources, our client wishes to be advised as to her entitlement to financial provision out of his estate and, in particular, whether she may remain in the former quasi-matrimonial home which was owned by Martin.
The Inheritance (Provision for Family and Dependants) Act 1975, as amended by the Law Reform (Succession) Act 1995 provides that (provided the deceased died on or after 1st January 1996) any person who [not being a spouse or former spouse of the deceased] during the whole of the period ending immediately before the date when the deceased died was living in the same household as the deceased and as the husband or wife of the deceased may apply to the court for an order under s.2 of the 1975 Act on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.
Our client will have to show that she was living in the same household as the deceased as his wife immediately before the date of his death. In this respect, it may be argued that her departure a little more than a fortnight before may disqualify her. However, this was a reasonably long relationship characterised by many such departures. It was held in Re Watson  1 FLR 878 that a court should determine whether parties were thus living together by reference to the test of “a reasonable person with normal perceptions” and having regard to the multifarious nature of marital relationships. Unless, therefore, there is some factor which makes the recent exit distinctively final, it is probable that the court will not hold that the necessary cohabitation had ended having regard to the history of the behaviour of the parties towards each other.
Where the court is satisfied of our client’s entitlement to apply and the failure of reasonable provision as described above, it is empowered by s.2(1) of the Act to make a variety of orders. Those which are probably applicable to Olivia are contained in ss.(a)-(c):
- Periodical Payments;
- Lump Sum;
- Transfer of Property (most notably in this case, an interest in the house).
In exercising these powers, s.3(1) provides that the court shall have regard to the factors set out in s.3(5). The relevant criteria in relation to our client will be:
- Her financial resources, needs and obligations (at the date of the hearing and in the foreseeable future);
- Those of any beneficiary of the estate of the deceased;
- The size and nature of the net estate; and (in relation to our client because she relies upon the reform effected by the Law Reform (Succession) Act 1995),
- Our client’s age, the length of time she lived with Martin as his wife and any contribution she made to the household (financially or by “keeping house”).
Because our client was a cohabitee rather than a spouse or former spouse (who has not remarried or had her entitlement terminated by court order) she will be unable to pray in aid the provisions of s.15A of the Act (introduced by the Matrimonial and Family Proceedings Act 1984) which requires in such cases that the court also have regard to the expectation of such a party had the marriage continued. Therefore, she will be restricted to the above criteria – the previously high standard of living will not be a factor.
Therefore, as presently instructed, it is possible to advise our client that (subject to the cohabitation issue described above being resolved in her favour) she is entitled to make an application. The precise outcome of such an application cannot at present be determined because it is not known whether and to what extent the court will have to balance her requirements against the competing claims of any beneficiary of Martin’s will or intestacy. Further, instructions have not yet been taken in order to determine whether Olivia has any independent income or resources of her own. (If, for example, during the periods of separation she was able to return to her own property, it would be difficult for her to sustain a claim that there should be a sufficient transfer of the interest of the estate in the house to allow her to continue to live there either during a period of necessary readjustment or even for the remainder of her life.) Her entitlement is also likely to be affected by consideration of her age: although she cannot demonstrate a lifetime’s reliance upon her domestic arrangements with Martin, she can show that she had been committed to this arrangement for a significant period of time and is of an age when a “fresh start” particularly if this requires re-entry into the labour market may be more difficult than if she were comparatively young.
While it is consequently impossible to predict the exact terms of a court order, our client may be assisted by the approach of the court in Churchill v Roach  EWHC 3230 (Ch). While this case was admittedly decided under s.1(3) (dependency) rather than s.1(1A), it demonstrates that in where the circumstances deem it necessary, the court will be willing to transfer a residential property to an applicant so as to meet her accommodation needs even if this is in some way qualified (as in Churchill by a charge-back in favour of the estate).
1. I began by consulting Jackson’s Matrimonial Finance and Taxation (7th Ed., 2002) and looked in the Index under “financial provision”. This however contained references to financial provision ancillary to divorce and was therefore unhelpful to a case of unmarried parties.
2. I therefore checked the Table of Contents and found Chapter 18, ’Maintenance out of Estate’ and the sub-heading ’Claims by Cohabitees’ at p.532.
3. I read on to p.535, “Who may apply” and found footnote 2 on that page which referred to Re Watson which I then located and read at  1 FLR 878.
4. I then read on to page 554 through the sections on “Tests to be applied” and “What Orders can be made” finding references (especially at p.547) to Re Coventry and Re Rowlands which I located and read at  Ch 461 and  FLR 813 respectively. While these authorities were helpful in forming an understanding of the principles applied, neither was especially “on point” (Re Coventry for example concerns an adult son as applicant.). It became apparent from this reading that the relevant statutory provision was the Inheritance (Provision for Family and Dependants) Act 1975 the text of which I resolved to obtain electronically in due course. I noted that the relevant section in respect of applications by cohabitees had been inserted by the Law Reform (Succession) Act 1995.
5. I turned then to electronic sources the first of which was Halsbury’s Laws Direct and searched for references to the Inheritance (Provision for Family and Dependants) Act 1975. This yielded 37 hits in Halsbury’s Laws of England and led me to p.583 “Rules of Intestate Succession” and I followed the links through para.665 to the text of the Act which I read noting the changes effected by the Civil Partnership Act 2004 which are not applicable in this situation. I noticed that s.1(1A) nonetheless remained in force.
6. I looked in particular at s.3 “Matters to which the court is to have regard”. Regrettably, this text did not contain any references to supporting case law.
7. As a cross-check I consulted All England Direct and searched for Re Coventry. This resulted in 36 hits which I refined to the report at  3 All ER.
8. I consulted Lawtel UK employing the search term “Inheritance+Act+Cohabitee” which yielded a reference to Churchill v Roach (Doc.No.: Case Law AC9100502) and I followed the links through the case summary to the full text which I then read.
9. Finally, I cross-checked the impact of the Law Reform (Succession) Act 1995 by referring to the HMSO website (www.hmso.gov.uk) and finding the text of the Act by year and alphabetically under ’Legislation’.
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