‘Cohabitation reforms could create more confusion when it comes to wills’ – lawyers react

On Friday, the government published its long-awaited consultation on reforming cohabitation rights, in what it called “the biggest reform to family law in decades” with the aim of “bringing the law into the 21^st century”.

The consultation seeks feedback on proposals to strengthen the laws protecting cohabitants on separation and the provision in cases of intestacy, as well as clarifying and codifying financial remedies on divorce and dissolution.

While family lawyers have been broadly welcoming of the measures, wills and probate solicitors have reacted with an element of suspicion.

Kirsty Morris, partner at Burgess Mee, asked: “Bringing the intestacy rights on death of cohabitants in line with those for married couples is welcome but will the government also extend the tax benefits of marriage in terms of IHT to those in cohabitating relationships?”

And Lauren Smith, partner at Taylor Bracewell Solicitors, said the proposals risk replacing one problem with another. “There is a very real danger that reforms like these create a false sense of security,” she said.

“People may believe the law will now ‘sort everything out’ for them after death. It won’t. In reality, modern families are far too complicated for any default legal framework to deliver the outcome every individual would want.”

Legal experts working with national will-writing campaign Will Aid say there is a danger that people could wrongly assume proposed changes remove the need for proper estate planning.

Research commissioned by Will Aid found that 68% of cohabiting couples do not understand what happens when someone dies without a will, while 25% incorrectly believe their estate would automatically pass to their partner.

Although 65% of those polled were in favour of changes to the law, Smith said changes could cause further problems, especially where people want to structure their affairs to ensure assets pass to children from previous relationships, grandchildren or other loved ones rather than automatically to a current partner.

“While the government’s consultation seeks to address an important issue, it also highlights just how complicated modern family life has become,” she said.

“The reality is that there is no single legal solution that can accurately reflect every family’s circumstance or every individual’s wishes.

“We regularly advise people who have children from previous relationships, blended families, business interests, inherited assets or specific wishes about who should benefit from their estate. What may be the right outcome for one family could be entirely wrong for another.

“Automatic inheritance rights could produce outcomes that are directly contrary to those wishes.”

She also warned that any reforms would also raise difficult questions about what constitutes a qualifying cohabiting relationship.

“There are practical questions around how cohabitation is defined and evidenced. Relationships and living arrangements are often far more nuanced than a legal definition can capture.

“Who decides when cohabitation began? How is it proven? What happens when couples separate and reconcile? What happens where finances remain entirely separate?

“These are not straightforward questions, and they create fertile ground for disputes.

“These are exactly the reasons why relying on default legal rules – whether current or future – should never be seen as a substitute for proper estate planning.”

The proposals should not distract from a more fundamental issue, Smith warned “The uncomfortable truth is that no law can ever know what an individual wanted.

“The only document that can do that is a professionally drafted will.”

Peter de Vena Franks, campaign director at Will Aid, agrees. He said: “The fact that nearly seven in 10 cohabiting couples do not understand the current law demonstrates how much confusion already exists.

“The answer cannot simply be to create another set of default rules and hope people read the small print. Every family is different. Every estate is different. Every person’s wishes are different.

“The only reliable way to protect your loved ones is to make your intentions absolutely clear through a professionally drafted will.”