Marriage and justice – Has Mr. Cameron got it right?

The Conservative spokesman on Justice, Henry Bellingham, has been rebuked by David Cameron for supporting the recommendation of the Law Commission, the Government’s legal body, to give cohabiting couples with children – who have lived together for two years – automatic entitlement to at least half of their partner’s estate if they die without leaving a will.

The present Law relating to Inheritance by an unmarried partner

The Intestacy Laws

Who inherits what when somebody dies without making a will is governed by the Intestacy Rules.  The intestacy rules are similar across the whole of the United Kingdom but there are some differences.  For example, it is possible for a second cousin to inherit in a Northern Ireland estate, whereas in England and Wales such kinship is too remote and barred from the right to inherit. 

In all jurisdictions across the United Kingdom, a partner of an unmarried couple has no right to inherit under the Intestacy rules.  A spouse, on the other hand, has prime rights.

The Inheritance Act Statutes

An unmarried partner has the right to make a claim against the estate under a set of statutes (which I call the “Inheritance Act Statutes”) (for Northern Ireland version see here).  An unmarried partner is one of a restricted class of persons (which include spouses, former spouses and children), that are entitled to make a claim under the Inheritance Act Statutes.  A court will make an award to the claimant if it decides that the distribution of the deceased’s estate – whether under the terms of his will or the Intestacy rules – does not make adequate financial provision for the claimant.  A wife or former wife of the deceased who makes a claim gets special treatment.  In deciding whether or not the financial provision is adequate, the Court considers the position as it would be on a divorce.  An unmarried partner does not get similar treatment.

Some would argue that the Inheritance Act Statutes are adequate protection for unmarried couples.  Others would argue that they are unjust.  I will give a practical example here.

Example of a possible injustice

A deceased during his lifetime marries.  A year later, he and his wife separate.  They never live together again.  The deceased then lives with a woman who becomes his lifelong partner.  The deceased then dies without making a will.

The Intestacy rules apply and already favour the long estranged spouse as his next of kin.   The unmarried partner is able to make a claim under the Inheritance Acts.  However, she is up against the provisions which favour a spouse.  It may be that the unmarried partner would be able to argue that the Court should make her a more favourable award because of Article 8 of the Convention on Human Rights (see below).  Still, even if that were to tip the scales (and there is no guarantee of that), it is an expensive and messy way for a partner to obtain justice.

Article 8 ECHR

The recommendations of the Law Commission are very much in line with the provisions of Article 8 ECHR which says

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

Failure to reform the law in this direction will almost certainly mean that there will be more inheritance cases in the Courts which engage Article 8.

Conservative Policy on the Family

So far, the Conservatives have promised to elevate the status of Marriage within the tax system

On the page of their website dealing with policy on the family, the Conservatives say:

“Money worries can put a huge strain on relationships – so we will end the couple penalty in the benefits system and recognise marriage in the tax and benefits system”

However, Mr. Cameron has emphasised clearly, from earlier speeches and articles the priority with which he regards the status of marriage.  In his Article posted July 11^th 2007 entitled “Time to give marriage a priority” Mr. Cameron says this”

“And what is the institution that, in so many cases, holds families together? Most of all, it is marriage. After a child is born, half of all unmarried parents split up within five years. For married parents, it’s just one in 12.

Of course, there is a ‘selection effect’ here – couples who are naturally strong are also the couples most likely to get married. But even once you analyse the evidence to take out the selection effect, it’s clear that marriage itself has a powerful impact on the way a couple regard their relationship.

It’s obvious why. Marriage represents a formal commitment. Those vows, whether spoken in church, a register office or anywhere else, are made before friends and family. They symbolise the highest aspiration of each of us – to form a committed, life-long union with another person.

Most people want to get married and stay married. Married families are most likely to survive the birth and upbringing of a child. So why, given this, is Labour so hostile to marriage?”

Mr. Cameron’s new stance on inheritance is totally consistent with what he has previously said.  However, he is likely to encounter criticism.  Some would argue that by intervening on reform of inheritance laws, he is placing his own ideals on the status of marriage before justice.  On the other hand, the ideal of elevating the status of marriage in our laws is inextricably linked to a central Conseravtive policy theme  - ”fiximg our broken society“.   The Conservatives will not wish to do anything which is seen to be undermining that theme.