Page last updated at 00:59 GMT, Saturday, 7 November 2009

Cohabitee rights plan criticised

By Brian Milligan
Business reporter, BBC News

holding hands
Unmarried couples are often not recognised as families under the law

Plans to give millions of cohabiting couples better inheritance rights are being criticised by lawyers, the BBC has learned.

The Law Commission for England and Wales wants unmarried partners to be able to inherit each other's wealth, even if they haven't written a will.

But some lawyers argue unmarried people may prefer that their wealth to go to parents or siblings, not their partner.

The Law Commission insists public opinion clearly supports change.

Marilyn Stowe, partner at a family law firm in Harrogate, is among lawyers who believe the proposals are a mistake.

"There is a fundamental difference between people who are married and not married," she said.

Ms Stowe questioned whether everyone who is not married would really like their partners to inherit everything.

"You might want to leave it to your parents, other members of the family, or friends," she said.

Living together

Cohabitors such as Liz Stovell, who lives in Hampshire, strongly disagree.

She lost her partner, Dave, three years ago from a heart attack. They were not married, and neither of them had written a will.

Had she been married, she would have been entitled to at least £250,000 from Dave's estate.

As it is, Dave's children from a previous marriage are the ones who are legally entitled to inherit his money. To reclaim some of that, she has had to go to court.

"It came as a big shock", she said. "I didn't realise that people living together just don't have the same rights as a married couple."

The proposals

The Law Commission now wants to change the law in England and Wales, to help people like Ms Stovell. The law in Scotland may also be liberalised, but to a lesser extent.

The Commission points out that there are now more than two million cohabiting couples in the country, a figure that is soon expected to rise to three million.

Some 30% of children are born into such relationships.

Professor Elizabeth Cooke, the Law Commissioner for England and Wales, believes it is high time the law caught up with the reality of family life.

She says in most cases, such couples represent genuine family units.

"They are family. One of them dies unexpectedly. And they can be taken by surprise in finding they have no entitlement under existing intestacy rules," she explained.

The Commission's proposals would allow any couple that have been together for five years, or who have children, to inherit from the other partner just as they would had they been married.

If the couple have been together for two years, but less than five, the surviving partner would inherit half the amount they would otherwise have been entitled to.

Writing a will

The proposals coincide with Will Aid month, a scheme to allow people to get a professional will drawn up for relatively small cost..

If more people did write a will, there would be less need for the current proposals. At the moment cohabiting couples are among the least likely to write a will. More than 80% of them do not get round to it.

Ms Stovell is amongst those who regret not doing so.

"I wish we'd done it when we decided to get together and share our lives. I do wish we had done," she said.

But writing a will with your partner can be much harder than it seems.

In Ms Stovell's case, her partner had a stroke three years before he died, and she thought it was just too sensitive a subject to broach. "It was something I didn't want to suggest to John," she said.

Professor Cooke, the Law Commissioner, concurs.

"There's almost a superstition about making a will," he said. "If I make one, maybe I'm going to die. Perhaps it's easier to say to your partner, 'shall we both make our wills?'"


Any change in the law would bring England and Wales into line with Australia, Canada and New Zealand.

But it will be up to the next Government to decide whether these proposed changes should become the law of the land, and so far there has been no official reaction from the main political parties.

The proposals are now open for consultation until the end of February next year. Anyone who wishes to comment can visit the Law Commission's website.

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