A mum, dad and child hold hands as they walk along a beach

Co-habitants and their rights

The Liberal Democrat peer and barrister Lord Marks has recently re-introduced his Cohabitation Rights Bill into the House of Lords. This Bill was first introduced by Lord Marks as a Private Members’ Bill nearly two years ago following the Government’s announcement that they did not intend to implement at that time recommendations made by the Law Commission in 2011 concerning the legal rights of co-habitants. The Bill reached its second reading at the end of last year but did not proceed any further before Parliament rose for the General Election.

The Bill seeks to provide certain rights and responsibilities for co-habitants and to provide a legal framework around the end of the relationship and on death. No such framework exists at present, despite the persistence of the modern myth that there is such a concept as a common law spouse. At present if a couple are living together, without being married or in a civil partnership, then on the death of one of them the survivor has no entitlement to assets in the deceased’s partner’s sole name. This is a situation that potentially could give rise to hardship or the need for the surviving partner to bring a claim against the estate in order to try to establish some entitlement.

Lord Marks’ Bill attempts to redress this situation by giving a co-habitant (as defined by the Bill) the same rights if their partner dies without making a Will as are presently enjoyed by spouses and civil partners. The Bill also gives qualifying co-habitants the same rights to apply to the Courts for financial provision from a deceased partner’s estate as currently apply to spouses and civil partners. To be a qualifying co-habitant under the terms of the Bill, broadly two people (whether of the same sex or opposite sexes) should be living together as a couple and either have a child together or have been together for a continuous period of at least three years.

The Bill makes no mention of any amendments to the Inheritance Tax Act 1984 so, although co-habitants would enjoy equal parity as far as intestacy and claims against the estate are concerned, they would still face a potential Inheritance tax bill if the estate were large enough, as they would not benefit from the Inheritance tax exemption that applies to spouses and civil partners.

Given that the Bill does not at present have Government backing, it remains uncertain whether this time it will make it through the Parliamentary process. Co-habitants should be aware in the meantime that they can put in place for themselves the type of legal regulation envisaged by the Bill by entering into Cohabitation Agreements and ensuring that an appropriate Will is in place.