Is living in the same household the same as living under the same roof?

 In Comment

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IPFD 1975 – Living in the same household does not necessarily equate with living under the same roof: Kaur v Dhaliwal [2014] EWHC 1991

Case Summary from LawSkills | Private Client specialist trainers

The judge in this appeal case had to consider the preliminary issue of whether a claimant fulfilled the criteria for the provisions of the Inheritance (Provision for Family and Dependants) Act 1975 (‘IPFDA’) to apply following the death of her fiancé. The facts and circumstances surrounding how the deceased and the claimant had shared, and not shared, a home were many and, at times, rather confused. But the decision reached in this interesting case makes it clear that a couple do not necessarily have to have lived together in the conventional sense for two years immediately preceding the death for the provisions of IPFDA to apply.

Judgment had originally been given on whether the claimant was a person to whom s.1(1A) could apply by Judge Powles QC. His decision had been successfully appealed to the High Court by the deceased’s sons, and remitted to Judge Powles QC to be reconsidered. The Judge again found in favour of the claimant on the preliminary point, and this case report concerns the appeal decision from this second judgment.

The facts

The claimant had met the deceased in May 2005, and they had become engaged the following month. This all happened in the aftermath of the deceased’s wife having committed suicide a few months earlier: the deceased had been charged with her manslaughter (by allegedly triggering the suicide) but was acquitted in March 2006, the acquittal being upheld on appeal in May that year.

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At the time of the engagement the deceased was still living in the family home with his two sons (the defendants in this IPFDA claim) and, in the light of the fraught family circumstances following his wife’s death, he and the claimant decided to keep their relationship secret until the elder son married the following year. The deceased, however, would often stay with the claimant at her home, and she began working in the café owned by the deceased with him, eventually giving up her job and working there with him seven days a week. Unsurprisingly, the relationship did not stay secret for very long, the deceased’s sons strongly disapproving of it.

In July 2006 a flat owned by the deceased became vacant, and the couple moved in there together. The length, and even the fact, of their joint occupation of the flat was controversial when first raised in this case, but by the time of this appeal it was common ground, as found by the judge, that the deceased and the claimant had lived there as man and wife in the same household for a period of three months from July–September 2006.

What happened after the deceased and the claimant left the flat in September 2006 is not altogether clear, although certain findings of the judge were not challenged:

  • For approximately a month, around January 2007, the deceased made a family visit to India with his younger son.
  • For approximately two weeks, in May or June 2007, both the deceased and the claimant stayed with a friend of the claimant.
  • At the beginning of July 2007, the deceased and the claimant moved into a flat together, and lived together (first in the flat, then in a second one they purchased together) until the deceased’s death on 7 June 2009.
  • The deceased and the claimant were living together in the same household as husband and wife (within the criteria of IPFDA) from the time they moved into the flat at the beginning of July 2007 until the deceased’s death.

It was agreed for the purposes of the appeal, therefore, that for a continuous period of about 1 year and 49 weeks immediately prior to the death of the deceased, he and the claimant were living in the same household as husband and wife within the meaning of IPFDA. The length of this period of cohabitation was not, however, sufficient to bring the claimant within the provisions of IPFDA, and the appeal centred on whether the circumstances of the couple’s living arrangements before they moved into the flat in July 2007 were sufficient for the claimant to satisfy the requirements of IPFDA after all.

The law

Section 1 (1A) IPFDA states that:

“This subsection applies to a person if…, during the whole of the period of two years ending immediately before the date when the deceased died, the person was living—

(a) in the same household as the deceased, and

(b) as the husband or wife of the deceased”

Mr Justice Barling was asked to consider, in this appeal, the question of whether the claimant was someone to whom s.1(1A) IPFDA applied. It was agreed that the deceased and the claimant had met its criteria for 1 year and 49 weeks before the deceased’s death. The point in issue was whether they had met the two year requirement necessary for s.1(1A) to apply in the light of their living arrangements in the preceding months. The deceased’s sons contended that although parties can satisfy the statutory criteria even if temporarily separated (eg one visiting his or her family without the other), the facts of this case were strikingly different.  The sons argued that a gap of 8 or 9 months in living under the same roof where the parties had only been living permanently together for 3 months previously (during which all agreed they did satisfy the criteria of living in the same household as husband and wife) meant the criteria were no longer, during that time, being met.

The decision

Judge Powles QC had concluded in the judgment now being appealed, that the (admittedly qualifying) relationship between the deceased and the claimant which existed from July to September 2006 did not come to an end when the parties left the first flat they lived in together, but endured until they moved in together again and beyond, up to the deceased’s death. Mr Justice Barling noted:

“He so concluded notwithstanding that he was unable to make a finding that they were living physically under the same roof throughout the disputed period. His conclusion was that in the light of all the evidence this did not matter, as once the underlying relationship  had commenced in July 2006 it did not at any stage come to an end, but subsisted throughout.”

Mr Justice Barling believed the nature of the test whether the s.1(1A) IPFDA criteria were met was encapsulated in the questions posed by Lord Justice Ward in the Court of Appeal case of In re Dix, deceased [2004] 1 WLR 1399. One should ask:

  • whether there is a settled relationship creating a tie between the parties evidenced not simply by ‘their living under the same roof but by the public and private acknowledgement of their mutual society and the mutual protection and support that binds them together’, and if so
  • whether that relationship has irretrievably broken down, or, rather, is merely suspended, with any interruption being transitory.

On this basis, Judge Powles QC had been entitled, on the facts as found, to conclude that the parties’ settled relationship, which admittedly fulfilled the criteria from July to September 2006, continued throughout the disputed period until the deceased’s death. Those facts included the following:

  • that day in, day out, throughout the disputed period, the parties worked together in the deceased’s café (save for when the deceased visited India);
  • that their settled establishment in the flat from July 2006 was interrupted in September 2006 for family reasons unrelated to the ongoing state of their own relationship;
  • that they were undoubtedly under the same roof, staying with a friend of the claimant, for two weeks in May/ June 2007 before resuming a permanent establishment in a flat again in July 2007; and
  • that their engagement to marry subsisted throughout with the knowledge of their respective families.

Mr Justice Barling noted that Judge Powles’ conclusion that the statutory criteria of s.1(1A) had been met was not dependent upon him finding that the deceased and the claimant  were living under the same roof at any particular time or place within the disputed period. His finding was that their relationship—a qualifying relationship, different from living under the same roof—continued ‘in full measure’ from the time they first lived together. The claimant therefore satisfied the requirements of s.1(1A) IPFDA.

Practice points

  • This case is an example of a couple living in the same ‘household’ whilst not living in the same ‘house’. It has, however, arguably pushed the boundaries of what can be considered an acceptable break in cohabitation further than previous cases. Would the same decision have been reached if the claimant had never resumed living with the deceased after the initial 3 month period sharing a flat? Some have also speculated on how significant it was that the claimant was a mere three weeks short of fulfilling the requirement for two years’ continuous cohabitation with the deceased.
  • The case shows some of the difficulties facing non-married couples in bringing a claim under IPFDA.  In this case it was clear that there was a formed and settled relationship, and that the couple were engaged, but the claimant was only successful in her claim because of a brief period they had lived together, some months before they finally settled under the same roof. Being married, by contrast, no matter how briefly or how separate the lives of the couple, gives a widow(er) automatic standing to make a claim under the Act.
  • Following this decision, practitioners should perhaps be looking in more detail at the circumstances of a relationship in issue to see if there has ever been a period of cohabitation from which the IPFDA two-year period can be argued to run. They should also consider any evidence of the couple having regarded themselves as in a settled relationship by reason of their ‘public and private acknowledgement of their mutual society and the mutual protection and support that binds them together’ in this light.

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