I. Introduction
Historically, English and Irish Law were both distinctly protective of marriage (still understood as an exclusively heterosexual institution)Footnote 1 as compared to other forms of adult relationship. In the 1950 English case of Gammans v. Ekins, it was famously deemed an “abuse of the English language” to say that an unmarried couple “masquerading” as husband and wife were members of the same family.Footnote 2 In its Constitution, meanwhile, the Irish state “pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack”.Footnote 3 The powerfulness of this “pledge” can be seen from the fact that divorce was not possible in Ireland until a 1995 referendum resulted in a constitutional amendment.Footnote 4
Both jurisdictions have nevertheless responded to social conditions and recognised a broader range of relationships for certain purposes. But in spite of their overlapping culture and geographical proximity, the recognition of adult relationships outside heterosexual marriage is proceeding at different rates in England and Wales on the one hand and in Ireland on the other. In England and Wales, legislation was passed in 1995Footnote 5 specifically to facilitate claims by unmarried cohabitants on their partners' estates. It took until July 2010 for the Republic of Ireland to enact such legislation,Footnote 6 which also introduced a marriage-likeFootnote 7 registration scheme for same-sex couplesFootnote 8 several years after the United Kingdom did so.Footnote 9 That said, the Irish Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (the “2010 Act”) in addition provides an “opt-out” statutory scheme for the inter vivos redistribution of unmarriedFootnote 10 couples' property.Footnote 11 By contrast, and in spite of the efforts of the Law Commission and others,Footnote 12 in England and Wales such couples remain infamously reliant upon the general law of trusts to effect redistribution in the event of relationship breakdown.Footnote 13
This article focuses on succession law, and specifically the claims now available to unmarried couples in both England and Wales and Ireland. It compares the eligibility criteria for such couples under the English Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act”) and the Irish 2010 Act before examining the recognition of a broader range of interdependent relationships in Australia. It argues that the 1975 and 2010 schemes cover a similar range of relationships in spite of using different methods of defining them, but suggests that both place undue weight upon whether or not the parties enjoyed a sexual relationship and held themselves out publically as a couple. In this respect, they both compare unfavourably to developments in several Australian states and territories.
Part II of the article provides an overview of succession law in Ireland and England and Wales, before Part III considers the respective definitions of a cohabiting couple used in the 2010 and 1975 Acts. It then argues that the recognition of non-conjugal relationships,Footnote 14 which occurs in several Australian states and territories inter alia, is both preferable and justifiable in the particular context of succession law.
II. An Overview of the Relevant Succession Legislation
A. Ireland
Before the 2010 Act, Ireland operated a comparatively less flexible law of succession, influenced by civil law systems.Footnote 15 The Succession Act 1965 gave spouses a fixed entitlement to a share in the deceased's estate irrespective of the terms of the deceased's willFootnote 16 and allowed only legal children of the deceasedFootnote 17 and former spousesFootnote 18 to bring a claim for discretionary provision. The spouse's “legal right” has been extended, with some qualifications,Footnote 19 to same-sex couples who have entered a civil partnership under the 2010 Act.Footnote 20
The new Act also enables “qualified cohabitants” to seek succession-based relief upon the death of their partners for the first time, broadly implementing recommendations of the Irish Law Reform Commission.Footnote 21 In making its overall recommendations, the Commission sought to respond to the increasing numbers of cohabiting couples in Ireland,Footnote 22 while admitting at the time of its Report that the incidence of cohabitation outside marriage was less common in Ireland than elsewhere.Footnote 23 A stated objective was to balance “the notion of respect for autonomy and the right of individuals in cohabiting relationships to non-state involvement in their affairs” with “the concept of favouring substance over form”.Footnote 24
Section 194 of the 2010 Act specifically facilitates an application by a member of a cohabiting couple for provision out of the net estate of his partner. The court can make the provision that it “considers appropriate having regard to the rights of any other person having an interest in the matter”.Footnote 25 It must be satisfied that “proper provision in the circumstances” was not made for the applicant during the deceased's life.Footnote 26 This idea of “proper” provision somewhat begs the question, although the concept is nevertheless used in the context of marital breakdown.Footnote 27 The 2010 Act itself provides limited guidance as to its interpretation, stipulating that the reason for the lack of such proper provision, leading to a potential claim under section 194, can be anything except “conduct by the applicant” that the court considers it “unjust to disregard”.Footnote 28 The Act could therefore retrospectively uphold a cohabitant's decision to punish his partner for undesirable conduct by refusing to make otherwise proper provision for him during their joint lives.
The focus on provision made for the applicant during the joint lives of the parties may imply no expectation that a cohabitant will make testamentary provision for his partner. At first glance, this contrasts with English Law's focus on whether reasonable provision was made by will or the intestacy rules.Footnote 29 That said, the Explanatory Memorandum for the original Irish Bill expressly assumed that testamentary provision would be included in the definition of “proper provision … during the lifetime of the deceased”,Footnote 30 and any such provision is clearly a relevant factor.Footnote 31
When deciding whether to make an order, the court is instructed to consider all the circumstances of the case,Footnote 32 including any order that is available inter vivos already made in favour of the applicant,Footnote 33 any devise or bequest made to the applicant by the deceased (as noted above),Footnote 34 the interests of the beneficiaries of the estate,Footnote 35 and the same factors considered on an application for the orders available inter vivos.Footnote 36
Only where the relationship ended before the death is an applicant for provision under section 194 required to demonstrate (prospective) financial dependence on the deceased.Footnote 37 The Explanatory Memorandum for the original Bill suggests that only a dependent cohabitant could make a claim,Footnote 38 but the subsequent insertion of the subsection dealing with relationships ending before death confirms that a claim could be made in the absence of dependence in the case of a subsisting relationship. Indeed, the Law Reform Commission considered a test of economic dependency to be unnecessary in succession cases where the parties had not ended their relationship, precisely because it was still subsisting at the time of death and a succession-based remedy could be said to give effect to the presumed intention of the parties.Footnote 39 In any case, a court is more likely to conclude that “proper provision” was not made where there was dependence, and the degree of financial dependence is considered when deciding whether the couple satisfied the definition of “cohabitants” in the first place.Footnote 40
Section 194 is clearly affected by the constitutional protection afforded to marriage. Provision made under it may not exceed the value of that to which the cohabitant would have been entitled had he been party to a marriage or civil partnership with the deceased.Footnote 41 Moreover, the provision cannot affect the legal right of any surviving spouse,Footnote 42 or the entitlements of spouses or civil partners under the Succession Act 1965.Footnote 43 Unfortunately, the nature of the provision that the court can order does not appear to be the subject of further definition in the Act.
In addition to the specific claim for provision out of an estate, it is expressly permissible to make one of the predominantly inter vivos orders introduced by the Act, the “compensatory maintenance order”,Footnote 44 “during the lifetime of either of the cohabitants”Footnote 45 such that it may be relevant after the death of one party. Nevertheless, it seems that such orders are primarily intended for relationships ending otherwise than by death, since (for example) the court can preclude a future application for provision from an estate under section 194 when making one of the orders available inter vivos.Footnote 46 This is similar to the power possessed by English courts when disposing of applications for financial relief on divorce in relation to future applications for family provision.Footnote 47
The criteria for the orders available inter vivos, designed to provide a “safety-net system”,Footnote 48 are that the “qualified cohabitant” is “financially dependent” on the other cohabitant as a result of the relationship or the ending thereof, and that the court considers it “just and equitable” in “all the circumstances” to make the order.Footnote 49 In deciding whether the “just and equitable” test is satisfied, the court is instructed to have regard to a number of factors contained in section 173(3).Footnote 50
Qualifying couples are expressly permitted to make an agreement governing what will happen to their finances inter alia where one of them dies, subject to various conditions.Footnote 51 A valid agreement may bar applications for inter vivos or succession-based provision under the Act,Footnote 52 subject to the courts' power to vary or set aside the agreement “in exceptional circumstances, where its enforceability would cause serious injustice”.Footnote 53
The courts' approach to the available orders will doubtless provoke discussion, especially given the Act's complexity. The legislature was content to specify a wide range of factors but also to leave doubts about the meaning of some provisions. The concern of this article, however, is the definition of the “qualified cohabitant” for the purposes of succession law, and how it compares to its equivalent in English Law and to more inclusive provisions in Australia. The next section of the article outlines the English law of family provision as a precursor to that discussion.
B. England and Wales
Unlike in Ireland, English Law applies a default rule of full testamentary freedom, with no compulsory portions of the estate reserved in cases where the deceased left a will.Footnote 54 Family provision, now governed by the 1975 Act, is an important exception to that principle. It originallyFootnote 55 allowed spousesFootnote 56 and certain dependent childrenFootnote 57 to bring a claim against a deceased person's estate where any will and/or the rules of intestacyFootnote 58 failed to make reasonable provision for them.Footnote 59 Since the commencement of the 1975 Act, some unmarried couples in England and Wales have in practice been able to bring a claim alongside other factual dependants even though they lack a formal legal relationship with their deceased partners.Footnote 60 However, when claiming as a “dependant”, a surviving member of a couple can be eligible for provision only if he manages to show that “the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money's worth towards the reasonable needs of [the applicant]”.Footnote 61 It was the narrowness of this category inter alia that led to the introduction of a specific category for cohabitants in 1995, which does not require dependence as far as eligibility is concerned.Footnote 62
The “dependant” category nevertheless remains useful for those claimants who fail to satisfy the particular definition reserved for cohabiting couples in the Act, which is considered in Part III. In Churchill v. Roach, for example, the applicant was unable to satisfy the minimum duration requirement in order to apply as a member of an eligible couple, but the deceased was held to have been maintaining her before his death such that she could claim as a dependant.Footnote 63
In any case, the link with maintenance is ever-present in the 1975 Act. In contrast to the position in Ireland, applicants other than spouses and civil partnersFootnote 64 must always show that any will and/or the intestacy rules did not make reasonable provision for their maintenance.Footnote 65 That said, the courts have been generous in their interpretation of “maintenance” when considering eligible cohabitants,Footnote 66 and the English Law Commission has proposed the removal of the restriction for such applicants.Footnote 67
A number of factors to which the court should have regard in determining whether reasonable provision has been made, and what provision should be made by the court if it has not otherwise been made, are specified in the Act. Some of these apply to all applicants,Footnote 68 while others apply to particular categories.Footnote 69 In the case of claims by members of cohabiting couples, who are not currently included in the intestacy rules,Footnote 70 the court is instructed to consider the applicant's age and the length of time for which he satisfied the eligibility criteria,Footnote 71 as well as “the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family”.Footnote 72
The court can make a range of orders for provision out of the estate. These are expressly contained in the 1975 Act, an advantage over the Irish provisions.Footnote 73 Available orders include periodical payments, lump sum orders and orders for the transfer of property.
The next part of the article considers the definition of relevant unmarried couples in both English and Irish succession law, before comparing them to the range of relationships recognised in some Australian states and territories.
III. Defining Eligible Couples
This part of the article begins by outlining the general approach to definition of a relevant couple in England and Wales and Ireland. It then critically examines the focus on sexual relations as a qualifying factor in both jurisdictions before making a case for the recognition of a broader range of relationships.
A. Approaches to Definition
1. Ireland
Under the Irish 2010 Act, a “cohabitant” is defined by section 172 as “one of [two] adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship”.Footnote 74 The cohabitants must not have been married to, or in a civil partnership with, each other,Footnote 75 and they must have been outside of the prohibited degrees in relation to each other.Footnote 76 In determining whether a couple satisfy the definition of “cohabitant”, the court is instructed to consider “all the circumstances of the relationship”, but with “particular” regard to a number of factors.Footnote 77 These are contained in section 172(2) of the 2010 Act, and they effectively serve as a checklist. This approach is followed in several Commonwealth jurisdictions,Footnote 78 and indeed the Law Reform Commission expressly cited the relevant New South Wales legislation when setting out its proposed list.Footnote 79
The relevant considerations in the 2010 Act are the relationship's duration,Footnote 80 the “basis on which the couple live together”,Footnote 81 the extent of any financial dependence of “either adult on the other” as well as any agreements concerning their financesFootnote 82 and the “degree and nature of any financial arrangements”, expressed to include the joint purchase of property,Footnote 83 whether there are any dependent childrenFootnote 84 and whether one party cares for the children of the other,Footnote 85 and “the degree to which the adults present themselves to others as a couple”.Footnote 86
The Irish Law Reform Commission's Draft Cohabitants Bill contained the proviso that:
No finding in respect of any of the matters mentioned in [the equivalent provision to section 172(2)], or in respect of any combination of them, is to be regarded as necessary for the purpose of determining that two adults are cohabitants; and in determining whether they are cohabitants, regard may be had to those matters, and to attach such weight to those matters, as is appropriate in the circumstances.Footnote 87
Similar provisions are included, for example, in the equivalent New South WalesFootnote 88 and New ZealandFootnote 89 legislation. However, such a declaration has not been included in the eventual 2010 Act. This could have significant consequences when the Act comes to be interpreted by the judiciary if the absence of such a provision reinforces the notion that some factors must necessarily be present before the parties to a relationship are deemed to be “cohabitants”.
The succession-related reforms in the Act do not apply even to all those who do satisfy its definition of “cohabitant”. It therefore further defines the “qualified cohabitant” by setting down minimum durations for which he and his partner must have lived as a couple.Footnote 90 The relevant duration is two years where the cohabitants are both the parents of at least one dependent child,Footnote 91 and five years otherwise.Footnote 92 A child is considered dependent if he is under 18, under 23 and in full-time education, or “incapable of taking care of his or her own needs because of a mental or physical disability”.Footnote 93 The final Act is therefore restrictively applied to couples without dependent children of their own. A three-year minimum duration was set down for such childless applicants in the original Bill,Footnote 94 mirroring the Law Reform Commission's proposal.Footnote 95 But the Justice Minister himself introduced the five-year amendment in the Committee stage, apparently following lobbying from the Irish Farmers Association.Footnote 96 While economic disadvantage is more likely to accrue where children are present and the redistribution of property inter vivos raises difficult issues in shorter relationships, five years is an excessive period before which a cohabitant can even be eligible to seek provision from an estate of which his deceased partner has no subsisting need.
The Act also takes a conservative approach to cohabiting parties with subsisting marriages to third parties. Whatever the duration of the relationship, if either party to the relationship was married to (but apparently not in a civil partnership with) someone else, neither cohabitant will be “qualified” unless each married party lived apart from his spouse for at least four in the previous five years.Footnote 97 This restriction was not proposed in the Law Reform Commission's Draft Bill.Footnote 98 It eventuallyFootnote 99 took the view that while the entitlements of a current or former spouse of a cohabitant should be taken into account and notice of the proceedings should be given to such a person, “an existing marriage should not be a bar to an application under the proposed redress model”.Footnote 100
Part of the conservatism in the Act can be explained by Irish divorce law itself, which sets down the same separation period before a divorce can be granted as for qualified cohabitants who are still married,Footnote 101 and by the constitutional protection afforded to marriage in Ireland.Footnote 102 It will already be apparent that anxiety about the potential to conflict with the Constitution permeates the Act's passing. In an example from a different context, on the advice of the Attorney General the Justice Minister opined that “to comply with the Constitution, it is necessary to differentiate the recognition being accorded to same-sex couples who register their partnership with the special recognition accorded under the Constitution to persons of the opposite sex who marry”.Footnote 103 Moreover, when writing about de facto relationships Walsh and Ryan were conscious that “too ready an equation between marriage and other alternative family forms may amount to an attack on marriage” for the purposes of the Constitution.Footnote 104 Many would question the extent to which it is necessary to withhold rights from those who do not marry in order to protect those who do,Footnote 105 but caution was inevitable against the backdrop of a written Constitution protecting heterosexual marriage.
In a departure from the Irish Law Reform Commission's proposal,Footnote 106 however, the minimum period prescribed by the 2010 Act does not have to end with death. This may be said to be justifiable on the basis of the inter vivos liability imposed by the Act. A qualified cohabitant can make an application under section 194 where the relationship ended up to two years before the death of his partner. Even if the relationship ended more than two years before the death, an application can still be made where the applicant was in receipt of periodical payments,Footnote 107 or an application for an inter vivos orderFootnote 108 (or for a variation of such an order)Footnote 109 had previously been made and the proceedings were pending or any order was not executed by the time of death. That said, an application under section 194 is less likely to succeed where the relevant relationship ended before the death of one of the partners.Footnote 110 A claim is barred if the applicant has subsequently entered a marriage or civil partnership,Footnote 111 and even if he has not done so, as discussed above, he must satisfy the court that he “is financially dependent on the deceased”Footnote 112 according to a subsection employing rather questionable usage of the present tense.
2. England and Wales
English Law, of course, is untrammelled by constitutional protection of marriage. The 1975 Act adopts a similar definition of the relevant cohabitation relationship to that used in Ireland, albeit with an approach to the minimum duration that is both less nuanced and significantly less conservative than the 2010 Act. The 1975 Act allows claims by applicants who did not formalise the relationship but “during the whole of the period of two years ending immediately before the date when the deceased died” lived “in the same household as the deceased” as either his spouseFootnote 113 or his civil partner,Footnote 114 whether or not either party has a subsisting marriage or civil partnership to a third partyFootnote 115 and without any special provision for couples with children. There is one respect in which the approach to definition in the English and Irish schemes could become closer in the future, since the English Law Commission recently suggested the removal of the marriage and civil partnership analogies and an alternative test of whether the deceased and the applicant were “living as a couple in a joint household”.Footnote 116 But another of the recommendations in its 2009 Consultation Paper could increase the distance between the schemes, since it proposed the removal of the minimum duration requirement for cohabitants who were both the legal parents of one or more children, apparently without reference to the dependency of such children.Footnote 117
The requirement that the relationship ends with death in the 1975 Act provides one respect in which the range of cohabitational relationships covered appears narrower than under the 2010 Act, although it has been seen in the previous section that restrictions are placed on claims by parties to Irish relationships that have ended before the other party dies. Moreover, significant flexibility has surrounded the interpretation of the two-year period ending with death in English cases where, for example, the now-deceased cohabitant spent a significant period in hospitalFootnote 118 or the parties underwent a temporary separation before the death.Footnote 119
An apparently more significant difference is that the 1975 Act does not elaborate upon its definition using a checklist, leaving judges to flesh it out when deciding cases. But in spite of the formal differences between the English and Irish legislation and the fact that the Irish Law Reform Commission did not explicitly cite any English family provision cases in its final report, English case law has deemed many of the factors listed in the 2010 Act to be important in determining whether or not a couple have lived in the same household as spouses or civil partners. For example, when considering what it meant for a couple to live in the same household in Churchill v. Roach, and although he was conscious of the dangers of seeking to define such a relationship conclusively, Judge Norris QC opined:
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.Footnote 120
An analysis of the extent to which any given relationship exhibits these features is likely to be similar to one undertaken when applying the Irish Act. Some of the overlapping features, including whether the relationship is “intimate” and “committed”, form part of the basic definition of cohabitants under the 2010 Act. Several of the section 172(2) factors, namely the basis and duration of the relationship and the parties' financial dependence and arrangements, are also entirely consistent with Judge Norris QC's conception of a household shared by a couple. Responsibilities towards children were not at issue in the particular case of Churchill, but they are also likely to be given significant weight in English Law.Footnote 121
Despite these different methods of defining the relevant relationship, it therefore seems that the two pieces of legislation will cover similar sorts of association, although the differences in the relevant lengths of association are significant. If anything, the Irish method of definition is to be preferred (even if its conservatism as regards relationship length is not) since it prevents the court from having to make a value judgment about what a spousal relationship (or its civil partnership equivalent) should look like for the purposes of comparison. Indeed, the Irish Law Reform Commission deliberately sought to avoid an analogy with marriage when proposing the definition of a relevant “cohabitant”,Footnote 122 and its counterpart in England and Wales has since acknowledged the weakness of such an analogy.Footnote 123
Inevitably, however, the model contained in the 2010 Act does present the difficult task of prioritising a diverse range of considerations, and the English Law Commission has expressed concern about the possibility that such a list could introduce a “box-ticking mentality”.Footnote 124 Overall, the checklist approach does at least provide substantive and explicit guidance on the nature of the relationship that is the subject of regulation, and is advantageous provided a flexible approach is adopted by the judiciary and no factor is considered necessary or sufficient without strong justification. The next section of this article considers an aspect of the relevant relationship, namely the sexual element, in respect of which neither the new Irish legislation nor the English case law exhibits enough flexibility.
B. The Sexual Nature of Coupledom
1. Ireland
Unlike the Law Reform Commission's Draft Bill,Footnote 125 the list of factors in section 172(2) of the Irish 2010 Act makes no specific reference to the presence or absence of sexual intimacy as a pertinent consideration regarding eligibility. Nevertheless, section 172(3) of the Act states “[f]or the avoidance of doubt” that a relationship does not “cease” to qualify as one of cohabitation “merely because it is no longer sexual in nature”. There is therefore a clear assumption that two “cohabitants” will have engaged in sexual activity at some point over the course of the relationship. That assumption is reinforced by the exclusion of those within the prohibited degrees of relationship from the definition of “cohabitant”, and from the absence of any proviso that no one factor is to be regarded as necessary for the purposes of establishing the existence of a relevant cohabitation relationship. The Act also makes reference to the public nature of coupledom by including “the degree to which the adults present themselves to others as a couple” among the checklist factors.Footnote 126 While a publicly-acknowledged couple-based relationship is not an absolute requirement on the face of the legislation, it is open to the judiciary to render it so in the future in spite of the degree of flexibility inherent in the Act.
The Act's lack of application to non-conjugal relationshipsFootnote 127 and the prospect of courts examining the intimate details of the parties' sexual lives (or lack thereof)Footnote 128 were raised with concern during the Parliamentary debates, to no immediate avail. Even a member of the Dáil Éirann who raised the issue of non-conjugal relationships admitted that the Act may not have been “the most appropriate vehicle” through which to provide for them.Footnote 129 This is consistent with reaction to the “wrecking amendment” proposed as the English Civil Partnership Bill passed through the House of Lords, which would have opened up civil partnership registration to certain people within the prohibited degrees.Footnote 130 Nevertheless, as argued below,Footnote 131 such concerns are attenuated in the particular context of succession law. Moreover, the inclusion of informal relationships in an opt-out scheme should raise fewer questions of status than the provision of a marriage-like institution for same-sex couples.
Even following the 2010 Act, then, Irish law remains wedded to the marital or at least conjugal tie as a pre-requisite for judicial intervention in property matters where the parties are not parent and child, whether the intervention occurs while both parties are still alive or after one of them dies. This is in spite of the lack of priority given to testamentary freedom in Ireland in the first place as a result of the spouse's “legal right”, the potential for parents, siblings and other blood relatives to inherit under the intestacy rules,Footnote 132 and the relief from inheritance tax granted to non-conjugal cohabitants in certain circumstances.Footnote 133
2. England and Wales
English family provision law appears to make similar assumptions about sexual intimacy forming part of the essence of coupledom. While the prohibited degrees of relationshipFootnote 134 are not specifically referenced in the definition of the relevant relationship, it is extremely unlikely that the judiciary would hold that two people within the prohibited degrees could be “living … as” spouses or civil partners.Footnote 135 In Re Watson (Deceased),Footnote 136 it was held that an elderly couple who shared neither a bedroom nor a sexual relationship while they lived together did in fact satisfy the requirements of section 1(1A) of the 1975 Act. Neuberger J. noted that the couple had shared a common domestic life for over a decade. On the other hand, the judge was apparently influenced by the fact that they had enjoyed a sexual relationship at an earlier stage in their lives, albeit before they lived together, and that they had been prevented from setting up home together at that point due to obligations owed towards their respective parents. Neuberger J. also rejected the suggestion that it was sufficient to show that the deceased and the applicant had a relationship that could potentially be enjoyed by a husband and wife.Footnote 137
Thus, while both the English case law and section 172(3) of the 2010 Act have made concessions to old age as regards the importance of sexual ties, it is unlikely that a couple who have never engaged in a sexual relationship will qualify under the cohabitation provisions of either the 2010 or the 1975 Acts.
Moreover, in line with the Irish legislation, emphasis was placed on the public nature of coupledom in the unfortunate English case of Baynes v. Hedger.Footnote 138 In that case, although he had already decided that the deceased and her putative same-sex cohabitant did not share a household in any event, Lewison J. also concluded that it was “not possible to establish that two persons have lived together as civil partners unless their relationship as a couple is an acknowledged one”.Footnote 139 He therefore decided that the two elderly women had not lived together as such because their relationship as a couple was not openly acknowledged. This is unsurprising since, for example, their 50-year “loving relationship”Footnote 140 began at a time when private and consensual sexual activity between two males remained a criminal offence.Footnote 141 Lewison J. drew his conclusion in spite of Neuberger J.'s opinion, expressed in Re Watson, to the effect that both “internal” and “external” elements are relevant when considering the nature of the relationship and, if anything, internal elements are more important.Footnote 142 The New South Wales Law Reform Commission specifically addressed the difficulty present in Baynes v. Hedger by recommending that the equivalent legislation there should require the court to consider “possible reasons for parties not holding themselves out publicly as a couple, arising from the social context in which their relationship existed” to address this difficulty.Footnote 143 At a time when the acceptance of same-sex relationships remains far from universal,Footnote 144 this pragmatic suggestion has much to commend it. As will become clear below, however, the law of family provision in New South Wales is much less focussed on conjugal coupledom in any event.Footnote 145
It has been seen that English Law does attempt to recognise a form of dependence per se, without reference to a sexual relationship, using a specific category of applicant.Footnote 146 This is true even if the applicant must demonstrate material dependence on the deceased, and if interpretations of the relevant statutory provisions have on occasion suggested that the more an applicant has done for the deceased, the less likely it is that his claim will succeed.Footnote 147 This is because the “full valuable consideration” that the applicant must avoid providing for the maintenance has been interpreted as including benefits conferred otherwise than under a contract, such that the contributions of the claimant and the deceased must be balanced.Footnote 148 In Plumley v. Bishop, however, Butler-Sloss L.J. considered it important to avoid “fine balancing computations involving the value of normal exchanges of support in the domestic sense”.Footnote 149 Building on this, the English Law Commission has recommended an approach based on factual dependency on the relationship itself rather than on a “flow of benefits” from the deceased to the applicant.Footnote 150 This suggestion should be welcomed, since it avoids the difficult question of which party is truly dependent on the other.Footnote 151 Moreover, where a provider of a domestic or other service has been promised testamentary provision by the deceased, the doctrine of proprietary estoppel may be able to provide a remedy irrespective of (and perhaps strengthened by)Footnote 152 the lack of a familial or conjugal relationship with the deceased.Footnote 153 But for the moment, albeit to a lesser extent than for its Irish equivalent, a sexual relationship remains a key feature of eligibility under the 1975 Act where the applicant was not related by blood or marriage/civil partnershipFootnote 154 to the deceased.
C. The Case for Greater Inclusion
1. Lessons from Australia
The focus on conjugal couples (who are publically recognised as such) present in both English and Irish succession law differs significantly from the position in Australia.Footnote 155 A number of Australian states and territories have recognised non-conjugal relationships for various purposes, including the distribution of property inter vivos and on death, often on the basis of the presence of care and support.Footnote 156 For example, various rights were attached to “domestic relationships” in New South Wales in 1999.Footnote 157 The concept of a “domestic relationship” includes not only a de facto (conjugal) relationshipFootnote 158 but also a “close personal relationship”.Footnote 159 The recognition of the “close personal relationship” sought to provide “an avenue for redress for people who suffer some detriment (and are not compensated for it) because of the care and support they provide to another, be it an elderly or ailing parent or friend or neighbour, for no fee or reward”.Footnote 160 Such a relationship exists “between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care”.Footnote 161 A party to a close personal relationship can override testamentary freedom by bringing a claim for discretionary provision out of the other party's estate under the Succession Act 2006Footnote 162 provided the relationship subsisted at the time of deathFootnote 163 and “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application”.Footnote 164
The requirement of subsistence at the time of death for a “close personal relationship” is more restrictive than the Irish criteria for a “qualifying cohabitant” and the “living together” requirement imposes an additional hurdle as compared to the English “dependants” category (albeit that the English category is restrictive in other respects).Footnote 165 But the New South Wales Court of Appeal has suggested that the common residence requirement might be “somewhat more attenuated” for the purposes of a close personal relationship than for a de facto relationship,Footnote 166 and it is clear that a wide range of relationships are included so long as the amount of support and care provided is significant. As McColl J.A. said in the Court of Appeal case of Hayes v. Marquis, “if two adults lived together fulltime and one provided domestic support and personal care to the other only once or twice a year, it would be difficult to say that a close personal relationship had been established”.Footnote 167
Taking an alternative approach, albeit one affecting the intestacy rules and not family provision,Footnote 168 Tasmania has introduced a registration scheme for “caring relationships”.Footnote 169 Some consequences can flow from such relationships even if they are not registered.Footnote 170 While Graycar and Millbank point to the apparent lack of use of the registration scheme and claim that there is “no empirical evidence to demonstrate an unmet legal need for any broadly-based recognition of non-couple relationships”,Footnote 171 they admit that that lack of public information may be a factor.Footnote 172 Inevitably, many of the problems with opt-in schemes for unmarried cohabitants are likely to apply in this context,Footnote 173 and it may be unreasonable to expect a significant number of people formally to register “caring relationships” for cultural reasons.Footnote 174
Although the New South Wales Law Reform Commission similarly reported that few claims have been brought by people in “close personal relationships” under the non-registration scheme there and that claims tend to be presented as falling within another category of applicant instead,Footnote 175 that is not always true. In Hughes v. Charlton, for example, “the evidence point[ed] to the [applicant] being a housekeeper for the deceased”, and the applicant was therefore eligible for family provision only as a result of the “close personal relationship” category.Footnote 176
2. Policy Arguments
The Australian models considered above demonstrate that it is at least possible to allow succession claims by parties to relationships primarily characterised by domestic support rather than blood, marital, or conjugal ties. This section attempts to address some of the policy arguments against the inclusion of such applicants (or applicants whose lives are otherwise intertwined except by virtue of a sexual relationship) within or alongside the couple-based provisions of the 1975 and 2010 Acts.
It has been said that “[t]here is very little research in Ireland or elsewhere on non-conjugal relationships”.Footnote 177 But any uncertainty surrounding the level of need for recognition of non-conjugal relationships should not be allowed to detract from the problems of principle with focusing on sexual intimacy (whether or not it produces children) as a necessary factor triggering inclusion, as distinct from a factor affecting the success of a given claim. Indeed, several scholars have questioned the relevance of sexual intimacy to relationship recognition.Footnote 178 For example, Wong has argued that there is “no logical reason to limit access to the law to only couple-based relationships” in a conjugal sense.Footnote 179 Baroness Deech has emphasised that “sexual activity itself does not cause dependency”,Footnote 180 and Choudhry and Herring note that two people who live together and have a sexual relationship do not per se “provide any particular benefit to the rest of society”.Footnote 181
By contrast, those who provide domestic and other support to each other, without necessarily being in a conjugal relationship, do provide a benefit to society and each other.Footnote 182 Indeed, Fineman considers society to be dependent on the “caretaking labor”Footnote 183 of “derivative dependants”, i.e. those who assume or are assigned responsibility for the care of someone who is inevitably dependent on others.Footnote 184 She criticises the fact that most of the costs of care are borne by the people providing the care themselves rather than being distributed amongst the true beneficiaries of care, whether institutional or individual. Fineman's writings have been said to require a recognition of “desert” in allocating resources.Footnote 185 Citing Fineman's work, Choudhry and Herring discuss an “alternative vision” based on a “carer-dependant” paradigm, albeit admitting that it would produce “a very different kind of family law”.Footnote 186 Whether the relevant relationship is properly characterised as “dependent” or “interdependent”,Footnote 187 and whatever precise factors may justify its recognition or non-recognition, many legal systems reflect a reluctance to move “beyond conjugality”Footnote 188 as far as such recognition is concerned.Footnote 189 Fineman has warned of the dangers of “duplicating the privileged form” of marriage even when recognising non-marital relationships,Footnote 190 although it is worth noting that in English Law a sexual relationship is not an absolute requirement of a valid marriage and is not a requirement of a valid civil partnership at all.Footnote 191 This only strengthens the argument in favour of abandoning sexual ties as a necessary feature of a recognised relationship outside of marriage.
Of course, it is important to consider public expectations with regard to which sorts of relationship are likely to be the subject of regulation and which are not,Footnote 192 even if the intention of the deceased person is not conclusive in the context of succession and family provision law.Footnote 193 Consideration of the deceased's expectations about the range of claims on his estate may go some way towards justifying an invasive inquiry into the sexual habits of a couple. Peart has criticised the uncertainty surrounding the parameters of the default and distinctly fixed property division scheme applied both inter vivos and on death to unmarried couples in New Zealand,Footnote 194 where a sexual relationship is neither necessary nor sufficient to bring a partner within the relevant definition. In Scragg v. Scott,Footnote 195 for example, it was confirmed that two people who never lived together or had a sexual relationship but regarded themselves as a “close and devoted couple”Footnote 196 could be within the property division legislation.Footnote 197 Nevertheless, definitional difficulties are an inevitable feature of schemes regulating informal relationships and should not preclude attempts at reform. Moreover, the fact that succession claims for non-conjugal couples would in all likelihood be subject to more discretion in England and Wales or Ireland than in New Zealand itself reduces the potential injustice caused by uncertainty in the eligibility criteria. The law should be more interested in whether the parties to a relationship have become economically interdependent or whether there is some similar factor (such as the provision of care and domestic support) justifying redistribution, and less interested in the nature of the parties' sex lives.
In this context, it is significant that a wider range of applicants can apply for provision on death under the English 1975 Act than during the lives of the parties. Indeed, in spite of the political difficulties in securing statutory inter vivos redistribution of unmarried couples' property,Footnote 198 the reforms accommodating such couples within the 1975 Act were described as in Parliament a “useful and uncontroversial measure of law reform”.Footnote 199 This discrepancy is justifiable for a number of reasons, notwithstanding the fact that the absence of a comprehensiveFootnote 200 statutory remedy in England and Wales facilitating redistribution of conjugal couples' property when relationships end other than by death (even on a subtler basis) is illogical.Footnote 201 Although testamentary freedom is an important principle in the common law world, it is already diluted in Ireland and Borkowski has noted that English testators were substantially unencumbered for only about a century.Footnote 202 It is clear as a matter of logic that a deceased person no longer has any substantial need of his property, and this contrasts sharply with the situation where property is divided inter vivos. Peart has acknowledged that “the preservation and security of the family” is one of the purposes of succession law,Footnote 203 and it could be said that a broad understanding of “family” should be permitted for this purpose.Footnote 204 A testamentary claim need not require the “breakdown” of a relationship, with all its conjugal connotations, and such a claim is more likely to reflect the intention of the parries than where a relationship has broken down inter vivos and a remedy is sought.Footnote 205 Eekelaar is also more willing to contemplate a succession claim than an inter vivos one in the context of an altruistic friendship-based relationship,Footnote 206 and Mee has accepted that for the purposes of recognising non-marital relationships it is “certainly arguable that the same qualifying criteria should not apply across all areas of the law”.Footnote 207
The distinction between inter vivos and succession claims is borne out in practice in New South Wales. Although inter vivos claims are available to people in “close personal relationships”,Footnote 208 the Law Reform Commission has said that few such claims are brought.Footnote 209 By contrast, a significant number of cases involving testamentary claims by parties to “close personal relationships” have been reported.Footnote 210
An Options Paper commissioned by the Irish Department of Justice, which eventually led to the introduction of the Civil Partnership Bill (later renamed), concluded that more research was necessary before proposals encompassing non-conjugal relationships could be made.Footnote 211 The Paper cited the Irish Law Reform Commission's conclusion that “it is not possible to devise a single scheme for the determination of legal rights and duties which can operate fairly and evenly across a spectrum of relationships ranging from on the one hand ‘marriage like’ relationships to familial or platonic relationships on the other”.Footnote 212 This is similar to the English Law Commission's conclusion, made during its “Sharing Homes” project, that “[i]t is not possible … to devise a statutory scheme for the ascertainment and quantification of beneficial interests in the shared home which can operate fairly and evenly across the diversity of domestic circumstances which are now to be encountered”,Footnote 213 which was itself cited by the Law Reform Commission.Footnote 214 Again, however, this attitude need not apply with regard to succession law, and factual dependants had been eligible family provision applicants for decades in England and Wales when the Law Commission there drew its conclusion. Conversely, the fact that the both the Irish Law Reform Commission and the final 2010 Act rejected a threshold of economic dependency for the purposes of claims in relationships ending with death, as opposed to inter vivos claims, demonstrates an acknowledgement that testamentary claims involve distinctive considerations and throws into doubt the need for a “single scheme”.
Undoubtedly, a large number of relationships where provision out of an estate is justified will satisfy the eligibility criteria contained in the 2010 Act as well as the 1975 Act. But the assumptions about the importance of sexual intimacy made even by the succession aspects of the 2010 Act as well as (to a lesser extent) by the English 1975 Act deserve to be challenged.
IV. Conclusion
It took 35 years for Ireland to follow England and Wales in allowing family provision claims by applicants other than spouses and children of the deceased. But although the Irish 2010 Act and the English 1975 Act clearly take different approaches when defining a relevant cohabiting couple for the purposes of their succession provisions, the significantly varying duration requirements and provisions governing those in subsisting marriages may well turn out to be the most crucial causes of discrepancy as regards eligibility between the two Acts. While it will be difficult definitively to analyse the definition of a “qualified” cohabitant contained in the new Irish legislation until a significant number of judgments are issued on the point, it seems that the 2010 Act in substance reflects much of what has been said in the English case law concerning cohabitants bringing a claim against their deceased partners' estates.
Of course, the fact that the two pieces of legislation produce similar results does not mean that those results are correct. This article has suggested that both place a significant and undue amount of weight on the presence or absence of sexual intimacy, even if the English Act counterbalances this to some extent with a “dependants” category that could soon be the subject of further reform. Whatever the uncertainties and empirical background, there are other relationships worthy of protection via succession law whose parties are less likely to fall within the relevant definitions of “cohabitant” under either Act, and it is not clear why a sexual relationship should be a pre-requisite for eligibility (even if it ultimately becomes relevant when a given claim is evaluated). Both England and Wales and Ireland should follow the lead taken by the Australian states and territories in recognising a wider range of non-conjugal relationships in their family provision laws. It is particularly disappointing that Ireland failed to do so given that reforms to its succession law were undertaken so recently. Until it facilitates a wider range of family provision claims, the Irish state could be accused of taking an unhealthily strong interest in the sex lives (or lack thereof) of its citizens via the succession provisions of the 2010 Act.
