UK: Don’t "Mind The Gap" In Cohabitation For A Successful Claim For A Cohabitee Under The Inheritance (Provision For Family And Dependants) Act 1975 - Kaur v Dhaliwal

Last Updated: 17 July 2014
Article by Rebecca Piper

An appeal judgment was handed down this month in the case of Kaur v Dhaliwal which was considered by the Honourable Mr Justice Barling sitting in the Chancery Division of the High Court. The Applicant in this claim sought to bring a claim for financial provision from her fiancé's estate under s1(1A) of the Inheritance (Provision for Family and Dependants) Act 1975 ("the Act"). In order for her to have standing under s1(1A) she would have to be a person who "during the whole of the period of two years immediately before the date when the deceased died...was living in the same household as the deceased, and as the...wife of the deceased". This appeal was focussed on the preliminary issue of whether the Applicant had satisfied the requirement of living with the Deceased for the period of two years prior to the date of death of the Deceased in order that she was eligible to bring her claim.

The Facts

The Applicant met the Deceased in May 2005 and they were engaged the following month. A few months prior to the Deceased meeting the Applicant his wife of 25 years had committed suicide. The Deceased has been charged for her manslaughter (by allegedly triggering her suicide) however he was acquitted in March 2006 (the acquittal upheld by the Court of Appeal in May 2006).

At the time of the engagement the Deceased was still living in the family home with his two sons (the Defendants to the claim) and the Deceased and the Applicant decided to keep their relationship secret until the elder son was married the following year. However, following their engagement the Deceased would often stay with the Applicant at her home and the Applicant began working in a cafe owned by the Deceased, eventually giving up her job to work there full time (7 days a week) and so unsurprisingly it did not take long for the Deceased's sons to become aware of the relationship.

In July 2006 a flat owned by the Deceased became vacant, and he and the Applicant moved in together. From the evidence it is unclear how long the Deceased and the Applicant lived together in this property but the first instance Judge found this to be until September 2006 (so a period of approximately 3 months) and found that the couple were living in the property at this time as man and wife and in the same household (so satisfying the criteria laid down in s1(1A) of the Act for this period).

From September 2006 (when the Deceased's son and his wife moved in to the property) it is not clear what the living arrangements were for the Deceased and the Applicant, and the Judge made no findings in relation to this (although it was acknowledged that the Deceased stayed with the Applicant at her home when he could, as at the start of their relationship, and that they both stayed with the Applicant's friend for a period of 2 weeks in May or June 2007).

At the beginning of July 2007, another of the Deceased's properties became vacant, and he and the Applicant moved into this property until around April 2009 when they moved together to a house purchased by both of them, where they lived together until the Deceased died on 7 June 2009.

It was therefore accepted that for 1 year and 49 weeks immediately prior to the Deceased's death the Applicant was living in the same household as the Deceased as his wife. She was therefore 3 weeks short of satisfying the requirement of living in the same household as the Deceased for 2 years immediately prior to his death (which she was required to satisfy under s1(1A) for the Act to be an eligible claimant).

The question before the Court was therefore whether, when considering:

  1. the initial 3 month period of cohabitation (July 2006 to September 2006) where the couple were living in the same household as husband and wife;
  2. the period of 8 months which followed this before the couple again lived in the same property;
  3. the 1 year and 49 weeks of cohabitation where the couple were living in the same household as husband and wife, immediately before the Deceased's death;

the Applicant could have been said to have been living in the same household as the Deceased as man and wife for the period of 2 years immediately prior to the Deceased's death.

If the Judge found that the criteria set out in s1(1A) of the Act was satisfied then the Applicant would be eligible to bring her claim If he found it was not satisfied then she would not have standing to bring a claim under the Act.

Judgment

The Court of First Instance allowed the Applicant's claim, finding that the criteria was satisfied for the required period of 2 years. When addressing the issue of the gap of cohabitation the Judge stated that "it is common ground that once a qualifying relationship is established the occasional separation of the length arising in this case does not matter". The Judge therefore appeared to consider that the period of cohabitation had begun in July 2006 and the relationship had continued to be a qualifying relationship under the terms of the Act until the Deceased's death in June 2009. The 8- month gap in cohabitation would not cause the Applicant to lose standing to bring her claim.

The Appeal

The Defendants (the Deceased's two sons) appealed against this decision. This was allowed and the matter was remitted to the Judge of First Instance. The Judge once again found in favour of the Applicant, clarifying the first judgment in certain respects. He found the fact that the couple worked together and spent a great deal of time together, and the emotional turmoil that the Deceased's family had been through following the suicide of the Deceased's wife were "two special features" which must be borne in mind when considering the relationship between the Deceased and the Applicant.

With reference to the 8-month gap in cohabitation the Judge stated that "a failure to prove exactly where they were living or cohabiting does not prohibit a finding that the relationship continued in full measure. When I say the relationship...I am talking about a qualifying relationship, which is one which meets the statutory requirements of the Act and thus encompasses being part of the same household, which is different from living under the same roof."

The Judge looked at the reasons that the couple separated at the end of September 2006 and found this was not a suspension in the relationship, or reflection of a cooling off of the relationship, but was to do with the Deceased's family circumstances.

The Judge found that the period of cohabitation began in July 2006 and that this was the 'norm'; the approximate 8-month gap in cohabitation which followed (before the couple resumed permanently living together in the same property) was a temporary interruption but the relationship continued to be a 'qualifying relationship' during this time.

The Second Appeal

The Defendants once again appealed. They argued that whilst potential applicants can satisfy the statutory procedure if there is a temporary separation (for example due to a holiday or business trip, or due to a spell in hospital or nursing home) the facts of this case (where following a period of cohabitation of only 3 months there followed an 8- month gap until cohabitation was again resumed) precluded a finding that the statutory criteria was satisfied.

The appeal was heard in the Chancery Division of the High Court. On the facts Mr Justice Barling found that the Judge of First Instance was entitled to conclude that the parties' settled relationship, which fulfilled the statutory criteria from July 2006 to September 2006 continued throughout the disputed period (the 8-month gap in cohabitation) until the Deceased's death. The relevant points in reaching this conclusion were that throughout the disputed period the couple were working together everyday in the Deceased's cafe, their settled cohabitation was disrupted in September 2006 for family reasons unconnected to their own relationship and their engagement continued throughout the whole period with the knowledge of their respective families.

Mr Justice Barling found that the Judge's finding was not dependent upon the couple living under the same roof during the disputed period, but that their relationship, which was a qualifying relationship, continued in "full measure" during that period, thus restating the accepted position that a couple can be living in the same "household" whilst not living in the same "house".

The relevant period was therefore considered to have begun in July 2006 and continued for the 2 years and 11 months until the Deceased's death – during this time it was deemed that the couple were living in the same household as husband and wife. Accordingly the appeal was again denied.

Conclusion

This case has arguably pushed the remit of what can be considered as an acceptable 'break' in cohabitation further than previous cases. It is perhaps significant that the Applicant was only 3 weeks short of 2 years' continuous cohabitation with the Deceased immediately prior to his death, and you can see why such circumstances may have aroused the sympathy of the Court.

It is questionable what the outcome of the case may have been if the Applicant had never resumed cohabiting with the Deceased again after the initial 3-month period if the Deceased's family circumstances had continued to make this an implausible option, or if the Applicant had only been living with the Deceased for a matter of months before his death. For her to have succeeded in such circumstances would have been a more surprising decision – but arguably the same principles would have applied.

There were of course exceptional circumstances in the facts of this case, but following this judgment lawyers when faced with potential Applicants under the Act should perhaps be taking steps to look in more detail at the circumstances of the relationship to explore if there has ever been a period of cohabitation on which they can pinpoint the two-year period to commence running, no matter how brief.

This case is an illustration of the difficulties that non-married couples can face in bringing a claim under the Act. In this case, albeit that it was acknowledged that there was a formed and settled relationship and the Applicant was engaged to the Deceased, the Applicant would not have been successful in her claim had she not lived with the Deceased for the relatively short period of 3 months some 8 months before they permanently began residing together.

The upcoming amendments to the Act (contained in the Inheritance and Trustees' Powers Act 2014 – due to come in to force on 1 October 2014) have not addressed the inequality that those in long term and stable relationships face (when compared to their married counterparts) if they have not cohabited together for 2 years immediately prior to the death of the Deceased when seeking to bring a claim under the Act.

A couple may have been in a stable relationship for 8 years, been engaged for half of that time but only lived together for 18 months and they would be barred from bringing a claim, they may have a child together, but still the bereaved partner would not be able to bring a claim for provision from their deceased's partner's estate on a strict reading of the legislation.

These circumstances are difficult to legislate on, marriage is 'black and white' and easily proven in law to exist. Being married gives you automatic standing to bring a claim, even if the parties to the marriage lived apart or led separate lives, or were even formally separated, the marriage certificate gives automatic standing to bring a claim under the Act.

In today's world, the traditional family unit is something less often seen. The stigma attached to those choosing to cohabit or have children before marriage is not what it was, or indeed not a stigma at all. It is not uncommon to see adult children living with their parents well into their 20s or 30s or returning to their parents' homes in order that they can save money to step on the first rung of the property ladder. The economic circumstances people are faced with may mean that committed couples do not have the finances to live together. They may be living separately in order to save money with the goal of purchasing a home together. This does not by default make them less committed to their relationship, however they are arguably penalised by the Act for their unmarried status. It is difficult to legislate on such matters however because something is difficult does not mean it should not be addressed. This case is another example of the Courts seeking to find a way to allow justice to prevail where the legislation on a strict reading has failed to assist. However it is disappointing that the Inheritance and Trustees' Powers Act 2014 has not taken steps to update the law in line with changes in society.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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