The Surviving Cohabitant’s Rights

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When a cohabitant dies, what can the surviving cohabitant claim for?

Who is a Cohabitant ?

A cohabitant as defined under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010   is one of two adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.

 

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Who is  a Qualified Cohabitant?

A qualified cohabitant means an adult who was in a relationship of cohabitation with another adult and who, immediately before the time  that relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period—

(a) of 2 years or more (in its entirety) , in the case where they are the parents of one or more dependent children, and

(b) of 5 years or more, (in its entirety)  in any other case.

Who is not a Qualified Cohabitant?

 An adult who would otherwise be a qualified cohabitant is not a qualified cohabitant if :

(a) one or both of the adults is or was, at any time during the relationship concerned, an adult who was married to someone else, and

b) at the time the relationship concerned ends, each adult who is or was married has not lived apart from his or her spouse for a period or periods of at least 4 years during the previous 5 years. 

What does the court take into account to decide whether it was an intimate and committed relationship?

(a) the degree to which the adults present themselves to others as a couple; (this is a very important factor considered by the Courts)

(b) the basis on which the couple live together;

(c) the degree of financial dependence of either adult on the other and any agreements in respect of their finances; (this does not need to be established for claims on death)

(d) whether there are one or more dependent children;

(e) the degree and nature of any financial arrangements between the adults including any joint purchase of an estate or interest in land or joint acquisition of personal property;

(f) whether one of the adults cares for and supports the children of the other; and

(g) the duration of the relationship;

For the avoidance of doubt a relationship does not cease to be an intimate relationship for the purpose of this section merely because it is no longer sexual in nature.

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What reliefs are available for Qualified Cohabitants after the end of the relationship?
  1. Maintenance- Periodic and lump sum payments.
  2. Property adjustment orders (but not an order for the sale of property, however this can be achieved under separate legislation.)
  3. Provision from the estate of the deceased cohabitant.
  4. Pension adjustment orders.
What does the Qualified Cohabitant have to prove to obtain a relief?
  1. That they were in a committed and intimate relationship.
  2. That they were qualified cohabitants.
  3. Financial dependency (not required when seeking relief on the death of a cohabitant)
  4. it would be just and equitable for the court to make an order for redress in all of the circumstances.
What are the entitlements on death?

The surviving cohabitant can seek provision to be made for them out of the deceased cohabitant’s estate. There is no need to prove that the surviving cohabitant was financially dependent on the deceased. There is also no need to prove that the deceased failed to make proper provision for the surviving cohabitant in their will or on intestacy.  

Limitations of the Court

The Court cannot make provision for the surviving cohabitant that is greater that what s spouse or civil partner would be entitled to in similar circumstances. This will depend on whether the deceased died with or without a Will. 

If the deceased cohabitee was married, the Court cannot make a provision for the surviving cohabitee that would reduce the Legal Right Share of the surviving spouse. 

What will the Court consider when making its decision?
  • Whether any Court Order was made under the legislation during the lifetime of the parties;
  • Whether any gift was left by the deceased in his/her will in favour of the surviving cohabitee;
  • The entitlements of other people in the deceased’s estate, under the will or on intestacy;
  • There is a list of 10 other factors set out in section 173(3) of the Act

 

What are the important time frames and deadlines to remember?

Two years:

The law provides a two-year time limit for the commencement of proceedings “save in exceptional circumstances” from “the time that the relationship between the cohabitants ends, whether through death or otherwise.” . Two years is the longest that a relationship can be ended before the death of the cohabitant when the surviving cohabitant is seeking redress from the estate. 

Six months:

There is an absolute time limit to apply for relief against the estate of a deceased cohabitant. It is six months after the date of the grant of representation ( Grant of Probate of Administration) . There is no obligation on the Legal Personal Representative to notify the surviving cohabitant of the date of issue of the Grant of Representation. However, steps can be taken to ensure that the surviving cohabitant is notified in time, but it is important to act swiftly.

If require legal advice please contact us.

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