ABSTRACT
Whilst England may still have no family property regime as such, in the decades since the current Inheritance (Provision for Family and Dependants) Act 1975 was passed, there have been structural changes in the social arrangements underlying family property. Family provision has kept pace with that through gradual amendments to the 1975 Act as well as by reflecting the changes in other areas of law, but these are still in a state of flux. The family envisaged by the family provision legislation is different from that envisaged by the intestacy rules. The most obvious difference is that of the attitude to cohabitants. Cohabitants have long been able to bring a family provision claim as dependants, but dealing with financial dependency where someone dies is of the essence of family provision legislation. The difficulties of claiming dependency as a cohabitant have produced considerable case law (see 15.4.1 and 15.26) and even recent legislative change, under the Inheritance and Trustees’ Powers Act 2014 (15.3.10). Standing to claim as a cohabitant, based on the existence of the relationship, is of a different order. The intestacy rules have not yet given any automatic rights to cohabitants. The property rights of cohabitants, sometimes erroneously called common law spouses, is a source of much practical misunderstanding, and the extension of family provision rights to cohabitants no doubt contributes to that. The structure of family provision law now reflects the social changes to the social definition of a family and of family responsibilities – the acceptance of cohabitation – more than does the law of intestacy. However, the advent of civil partnerships and same-sex marriage have removed the inherent gender discrimination in legal family formation in all areas of law.
