Cohabitants and the IPFD

 In Wills

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Cohabitants and the IPFD

When is a Claimant living “in the same household” as and “as the husband or wife” (or civil partner) of the deceased for the purposes of the Inheritance (Provision for Family and Dependants) Act 1975?

In Lindop v Agus, Bass & Hedley [2010] 1 FLR 631; [2009] EWHC 1795 HHJ Behrens, sitting as a deputy judge of the Chancery Division, conducted a timely, comprehensive review of recent authority on this point which is increasingly in issue where relationships develop and change in quality in the years before the death of the deceased.

The Facts

In Lindop the deceased and the Claimant both had children from previous relationships and the deceased was still engaged in contact proceedings with her former husband. She was reluctant to commit immediately to living with the deceased when he invited her to do so about a year after they had commenced a relationship. She did, however, spend more and more time at his property and moved in by degrees.

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By the time of the deceased’s death the Claimant and he had redecorated and furnished his property and they shared a bedroom where most of the Claimant’s clothes were kept. They arranged contact with their respective children so that their family would all be together on the same weekends. Within the contact proceedings, however, the Claimant gave her father’s address and it also became apparent that her father was not claiming the single person’s discount on the council tax at his property – to which he would, otherwise, be entitled. He did, however, give evidence at trial that she was living at the deceased’s house. Virtually all of the Claimants correspondence including bank statements were delivered to her father’s address where she appeared on the electoral roll.

The Law

HHJ Behrens referred first to Churchill v Roach [2002] EWHC 3230 where HHJ Norris QC had said: “It is, of course, dangerous to try and define what “living in the same household” means. It seems to me to have elements of permanence, to involve a consideration of the frequency and intimacy of contact, to contain an element of mutual support, to require some consideration of the degree of voluntary restraint upon personal freedom which each party undertakes and to involve an element of community of resources”.

He also referred to a case decided under the Fatal Accidents Act 1976 (which also has a requirement of living as husband and wife in the same household) Kotke v Saffarini [2005] EWCA CIV 221. There assistance was derived from the criteria in the supplementary benefits handbook: “…whether they are members of the same household; then there is a reference to stability; then there is the question of financial support; then there is the question of a sexual relationship; the question of children and public acknowledgment”.

In Baynes v Hedger [2009] EWCA Civ 374 Lewison J said: “Human relationships are many and various and it is perfectly possible that two people have a long-term, loving and intimate relationship without ever living in the same household… the question whether two people live together in the same household is essentially one of fact”. Observations are also made in that case to the effect that the whole of the period of the relationship can cast light upon the reality of the critical last two year period and that a temporary separation will not necessarily prevent the parties from continuing to live in the same household.

In Nutting v Southern Housing Group Ltd [2004] EWHC 2982 (Ch) (considering a similar requirement under the Housing Acts) Evans-Lombe J referred to a requirement: “that the relationship must be openly and unequivocally displayed to the outside world” and Neuberger J in Watson (deceased) [1991] 1 FLR 878 had said: “the court should ask itself whether, in the opinion of a reasonable person with normal perceptions, it could be said that the two people in question were living together as husband and wife; but that, when considering that question, the multifarious nature of marital relationships should not be ignored”.


HHJ Behrens concluded that the questions of whether a couple have lived as man and wife in the same household is a question of fact. This was not a case of separate households in separate properties despite the Applicant using her father’s address for bank statements and being registered to vote there; and despite her father not claiming the single occupancy discount on his council tax. Her failure to advertise her relationship to the entirety of the outside world including public authorities was not fatal. Rather she had been in a stable sexual relationship; the deceased had provided her with financial support and they had cared for children together. Most, but not all, of the evidence pointed to them living openly together and displaying this to the outside world.

Practice Point

An important practice point is to remember that when this issue is likely to prove controversial there will often be an alternative claim under s1(1)(e). Both should be pursued in the alternative (as was done in this case).

In summary mutual (or at least unilateral) financial support is an important part of the test, a committed intimate relationship is essential and shared child care will be very persuasive. It seems that the question of openness is important but will not be defeated by a failure to be wholly open about the relationship with every body or every individual particularly if, as here, there is a previous partner to whom there are perceived to be good reasons to be less than frank. This might be usefully contrasted with Baynes v Hedger where even close family and friends were unaware of the nature of the relationship between the Claimant and the deceased.


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