Good morning. Aggrey has raised an excellent and very common point of discussion in family law: the fairness of our inheritance laws for cohabiting partners. The phrase used, ‘cohabiting spouses’, is itself interesting, as it reflects a widespread belief in ‘common law marriage’ – a concept that, I must stress, has no legal standing in England and Wales. A couple is either married, in a civil partnership, or they are cohabitants. This distinction is crucial because the law treats them very differently upon death. My view, in short, is that while some protections exist, Aggrey’s assertion of unfairness is largely justified when we compare the position of a cohabitant with that of a spouse.
The Intestacy Rules: The Source of the Problem
The primary source of this unfairness lies in the rules of intestacy. If a person dies without leaving a valid will, their estate is distributed according to the Administration of Estates Act 1925. These rules automatically grant a significant, and often entire, portion of the estate to a surviving spouse or civil partner. A cohabiting partner, irrespective of the duration or commitment of the relationship, is entitled to absolutely nothing under these rules. This legal cliff-edge between the married and the unmarried is where the debate begins, as it fails to reflect the social reality that many couples live together for decades in stable, family-like relationships without formally marrying.
The Statutory 'Safety Net': The 1975 Act
However, the law does not leave a bereaved cohabitant entirely without a remedy. The Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of people to apply to a court for reasonable financial provision from the deceased's estate. Since the law was amended, this has included cohabitants who lived with the deceased for at least two years immediately prior to their death 'as if they were' a married couple or civil partners (Inheritance (Provision for Family and Dependants) Act 1975, s.1(1)(ba)).
But this 'safety net' is not the same as the automatic entitlement given to a spouse. First, the cohabitant must go to court, a process that is inevitably stressful, costly, and uncertain. Second, and crucially, the standard of provision is different. A spouse can claim what is reasonable 'in all the circumstances', which can be a substantial share. A cohabitant, however, can only claim what is reasonable for their 'maintenance' (s.1(2)(b)). As the Supreme Court discussed in Ilott v The Blue Cross Animal Welfare Charity [2017] UKSC 17, 'maintenance' is a limited concept, not intended to provide a windfall but to meet everyday living expenses.
An Unfair System?
This brings us back to Aggrey’s question. Is this system unfair? Many argue that it is. The requirement to litigate places a heavy burden on a grieving partner. As Lord Justice Moylan noted in Cowan v Foreman [2019] EWCA Civ 1336, a case concerning a cohabitant of over 20 years, it is 'unacceptable' that a person should be 'required to make a claim' to secure provision that a spouse would receive by right. He described the law as being in an 'unsatisfactory state'.
The law is attempting a difficult balance between respecting the deceased’s testamentary freedom and preventing a long-term partner from being left in hardship. The 1975 Act can result in significant awards, such as the transfer of the family home as seen in cases like Re P, deceased [2009] EWHC 163 (Ch). Nevertheless, the process itself, combined with the lower standard of provision, creates a clear two-tier system. Those who are married have rights; those who are not must plead for judicial discretion.
Conclusion
In conclusion, while the law has moved on from the days when a cohabitant had no claim at all, I would have to agree with Aggrey’s sentiment. The current law is still unfair. The distinction between an automatic right to inherit and the uncertain, stressful, and expensive process of making a court application for 'maintenance' is stark. It fails to adequately reflect the social reality of modern relationships and perpetuates the idea that marriage is the only form of relationship worthy of full legal protection on death. Until Parliament addresses this disparity, as has been recommended by the Law Commission, surviving cohabitants will continue to face an uncertain and often unjust legal battle.
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The Approach
My approach to answering this question was to first deconstruct the premise. I started by clarifying the legal terminology, correcting the common misconception of a 'cohabiting spouse' to establish the precise legal context of cohabitation versus marriage. Following this, I identified the primary source of the perceived unfairness: the stark difference in treatment under the intestacy rules. The next logical step was to introduce the legal mechanism that exists to mitigate this harshness, the Inheritance (Provision for Family and Dependants) Act 1975. I explained its key provisions and, crucially, its limitations, particularly the 'maintenance' standard. The core of the answer then involved a discussion evaluating whether this statutory remedy is a 'fair' solution, using judicial commentary from a key case (Cowan v Foreman) to support the argument that the need for litigation is itself a source of unfairness. Finally, I concluded by synthesising these points to provide a direct answer to Aggrey's question, weighing the limited protection offered against the superior rights of spouses to conclude that the law remains unfair.
References
Cases
- Cowan v Foreman [2019] EWCA Civ 1336
- Ilott v The Blue Cross Animal Welfare Charity [2017] UKSC 17
- Re P, deceased [2009] EWHC 163 (Ch)
Legislation
- Administration of Estates Act 1925
- Inheritance (Provision for Family and Dependants) Act 1975
