In our series of article about 1975 Act claims, we have already considered the position of both adult and minor children of the deceased. The other most common claimants in 1975 Act claims are cohabitees and spouses. The position of a long term spouse is generally clear: they are entitled to provision from the estate as is reasonable in all the circumstances whether or not it is required for their maintenance. For anyone else (including cohabitees) the provision is reasonable provision as required for their maintenance.
This puts spouses in a difference category, and potentially a much better position, than any other type of claimant. In our modern world where couples might cohabit for a long time, and choose not to get married for a variety of reasons, this seems unfair.
So what is the position for cohabitees, and are they in a better or worse position than someone who has been married to the deceased for only a short period?
The position of cohabitees
Cohabitees are dealt with by s1A of the 1975 Act. In order for a cohabitee to bring a claim, they must satisfy two factors:
They must have been living the same household as the deceased for two years prior to the deceased’s death; and
The cohabitee and the deceased must have lived as if they were a married couple of civil partners.
The second requirement seeks to prevent abuse of the rules. For example, it is not difficult to imagine unscrupulous individuals making a career out of moving in with elderly people for the purpose of providing care and companionship in their final years and then seeking provision from their estate. The ‘married couple’ requirement prevents this.
The two year period may present from difficulties if the period of cohabitation did not last this long. However recent case law suggests that the courts are minded to take a broad approach to such claims.
In the case of Kaur v Dhaliwal and another [2014] the claimant had cohabited with the deceased for a period of one year and 49 weeks prior to his death. This clearly fell just short of the requirement. However the court gave some important findings:
The key word was ‘household’ not ‘house’ and therefore if the couple had been financially tied or living together for all intents and purposes (e.g. they each kept their own properties but spent all of their time together) the court would look to the broader relationship rather than applying the rules strictly;
Similarly, if the relationship had irretrievably broken down but the couple had not yet moved out of their shared property, the court would not consider them living ‘in the same household’ for the purposes of a claim.
The position for short marriages
It might seem to create an odd anomaly that a claimant who had been part of a couple who had been living together for just shy of two years would not be able to bring a claim at all, yet a claimant who had been married (and possibility living with) their spouse for only a few weeks or months would be in a much stronger position than even other potential claimants, such as the deceased’s children.
There are some policy reasons for this. The main reason is probably that marriage is intended as a clear intention to share a life together. We live in a society that favours marriage and the law is no different. It is presumed that by entering into a marriage, you accept some level of financial responsibility toward your spouse. Indeed a refusal to get married may indicate that the deceased did not want the claimant to claim against the estate (though the deceased’s wishes often have little sway on the court’s views in such claims).
However the provision for spouses is provision which is reasonable in all the circumstances of the case. One of the factors taken into account in respect of spouses is the length of the marriage (note: the marriage not the relationship). Generally speaking, a very short marriage may well result in a lower award from the estate.
That being said, there might be some good reasons to look beyond the length of the marriage:
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The relationship may have been ongoing for a significant period prior to the marriage; and
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1975 Act claims are not to be treated like claims for financial provision on divorce. The death of one party to the marriage early in the marriage is not a decision to end the relationship.
Overall spouses are likely to have an easier time bringing claims for two reasons:
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There is no minimum period of the marriage before the spouse is entitled to bring a claim; and
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Spouses can expect to receive reasonable provision even if not required for their maintenance. They can generally expect to be kept in the lifestyle to which they became accustomed during their marriage, rather than the court looking at the minimum required for their maintenance.
Conclusion
When bringing a 1975 Act claim, it is important to understand the category of claimant which you fall into, and how the different criteria and factors will apply to your claim. It is always worth taking specialist advice to avoid costly mistakes in misunderstanding the factors the court will take into consideration.
If you have any queries about 1975 Act claims or any other issues concerns an estate, please contact Charlotte Braham by email or on 01494 893529.