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 In Probate, Wills

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Living together as husband and wife

A recent case on “living together as husband and wife in the same household”.

The Inheritance (Provision for Family and Dependents) Act 1975 (IPFD 75) provides a statutory framework for claims from survivors of deceased spouses.  Under s1(1)(a) the husband or wife of the deceased, and under s1(1)(b), a former spouse of the deceased who has not remarried may apply to the court for an order for reasonable financial provision under s2 of the Act.  A third category of persons is entitled to apply for provision under s(1A) of the Act provided that the deceased died on or after 1st January 1996: if during the whole of the period of two years ending immediately before the death of the deceased, the person lived  in the same household as the deceased; and as the husband or wife of the deceased.

The decision of HHJ Walden-Smith in Swetenham v Walkley [2014] WTLR 845 reviewed the authorities pertinent to the definitions of “household”, and “living together as husband and wife”.

Definition of “household”

The definition of “household” is not restricted to the occupation by two of one home; [15] “Having a second home is plainly not a barrier to living together in one household. The complications of modern day living, including busy work and social schedules means that many couples, including married couples and those who are not married but live as husband and wife, may well need to be in different properties at different times. The mere fact of absence from one or the other will not prohibit a finding that those two people occupy one household.”

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What is “living together as husband and wife”?

“Living together as husband and wife” involves a public acknowledgement of a mutual commitment, mutual protection, mutual society, intimacy, stability and social and financial inter-dependence. This does not require [19] “Sharing ongoing sexual relations or even the same bed or bedroom”.. [40] “The existence or not of sexual relationships is not determinative of whether a couple are living together as man and wife.”

Neuberger, J observed in Re Watson (Deceased)[1999] 3FCR 595, cited at [11] in Swetenham, that it is not unusual for happily married couples in their mid-fifties to abstain from sexual relations.

What is important is evidence of the tie between a couple living together as man and wife; shared pets, shared interests, holidays and outings, shared responsibilities are all capable of evidencing a bond of exclusivity. Mere friendship will not suffice.

The court will look to the whole of the facts of a case to discern the relevant elements of the public face of a relationship, the objective evidence of a couple living together as man and wife and the portrait they convey to the world as well as private, more subjective arrangements between them.

The new Inheritance & Trustees’ Powers Act 2014 changes to the IPFD 75 adopts the more inclusive language of surviving spouses or civil partners, which is to be welcomed.

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