High Court gives guidance about living apart together

Posted: 03/07/2014

In accordance with the Inheritance (Provision for Family and Dependants) Act 1975, a person who 'during the whole of the period of two years ending immediately before the date when the deceased died…was living (a) in the same house as the deceased, and (b) as the husband or wife of the deceased' is able to make a claim for reasonable financial provision from the deceased’s estate. The same principles apply to someone who has been living as the civil partner of the deceased for two years prior to the date of death.

It is not always easy to determine whether a relationship will satisfy the criteria set out in section 1(1A) of the Act. For example, some couples might consistently demonstrate themselves to be in a relationship akin to that of being husband and wife (or civil partners), even though they have their own separate homes (an arrangement sometimes called 'living apart together'). Furthermore, couples might have spent many years living together but then have had a short period of separation in the two years before death.

In the case of Harkinder Kaur v Sandeep Singh Dhaliwal [2014] EXHC 1991, the High Court was asked to determine whether the claimant satisfied the criteria in section 1(1A). It was not disputed that the claimant and the deceased had become engaged and lived together as man and wife for a period of three months in 2006 (the deceased died in June 2009) but the extent to which they had lived together from that point onwards was unclear, although the engagement had continued. The court applied the test set out by Lord Justice Ward In re Dix deceased [2004] 1 WLR 1399:

• whether there is a settled relationship creating a tie between the parties, evidenced not simply by their living under the same roof but by the public and private acknowledgement of their mutual society and the mutual protection and support that binds them together and, if so,
• whether that relationship has irretrievably broken down or, rather, is merely suspended, with any interruption being transitory.

The High Court found that the claimant had continued her relationship with the deceased (which was as if they were husband and wife) throughout the two years immediately before his death. As such, the fact that they had not continuously lived together throughout that period did not prevent the claimant from satisfying the criteria in section 1(1A).

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