Student ID: 200745212

Law 2330 Family Law

Word Count: 1,913

Part 1: Ask Legal Lexie

Dear Doris,
Thank you for your letter! I am sure you understand that marriage is a big
decision that only you can decide for yourself. However, I can advise you on
the legal implications of both contemplated choices and hopefully help you in
making an informed decision.
Firstly, it is imperative to note that if you continue the relationship just as it is,
you and your partner could be deemed as cohabitants. The Family Law Act
1996 defines cohabitants as two persons who are neither married to each
other nor civil partners of each other but are living together as husband and
wife or as if they were civil partners. The courts will also consider factors from
the leading case (Kimber v Kimber), to decide if there is cohabitation. You and
your partner have been in a long and permanent relationship and you spend a
lot of your time at his house. Most notably, it seems that the main reason of
not remarrying is fear of losing the matrimonial home and widows pension.
The courts would likely be persuaded to find cohabitation based on these
factors. If so, your widows pension will not be payable for any period that you
and your partner are cohabiting, and you will lose the matrimonial home as
per the wills directive.
However, there is a way to retain possession of the house. To do so, you will
need to check if the home was purchased in joint names as joint tenants or
tenants in common. For joint tenants, you will be entitled to your late
husbands share of the house despite the will, but not for the latter. You may
also challenge the validity of the will, as the condition of not marrying or live
with a partner permanently in order to stay in the matrimonial home is too
uncertain to be enforced by the Courts. You should seek independent legal
advice if you choose to do so.
Secondly, with regards to your partners will, you would receive nothing if he
does not make any changes to it. However, you can make an application
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Law 2330 Family Law

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under Inheritance (Provision for Family and Dependent) Act 1975 for
reasonable maintenance out of your partners assets. To be eligible, you have
to be cohabiting with your partner for at least two years before his death. You
will need to prove actual dependence on him; that he was maintaining you
either partially or fully and that he made a substantial contribution to your
reasonable needs. Such application is uncertain, as courts have to be
satisfied that it is reasonable to accept your application. Therefore, although it
is difficult to mention about the will, it will be in your best interests to do so. I
am sure your partner will understand if you tell him about your concerns.
In contrast, should you marry your partner, his current will could be revoked,
as it was not made in contemplation of marriage to you. Should this happen
and your partner passes away, his assets will be dealt with under the law of
Intestacy. As a surviving spouse, you will have statutory rights to his assets.
Even if the will is not revoked, you can apply for reasonable financial provision
out of his assets under Inheritance (Provision for Family & Dependent) Act
1975. This provision will be more substantial than if you were to apply as a
cohabitant as mentioned above. However, you will lose your widows pension
after you remarry. With regards to the matrimonial home, your options are the
same as if you were to remain status quo with your partner.
Apart from these legal issues, I suggest that you have a talk with your partner
about your worries, as it concerns him too. It will also benefit the both of you
in the future. I hope my advice has helped you.
Best Wishes for the future,
Legal Lexie.

(Total Word Count for Part 1: 647)

Student ID: 200745212

Law 2330 Family Law

Word Count: 1,913

Part 2: Annotated Bibliography

Frost M., Lilleyman v Lilleyman (2012) EWHC 821 (Ch) (2012) The Solicitors
Group
<http://www.thesolicitorsgroup.co.uk/Downloads/Articles/11Apr2012/Lilleyman
vLilleyman[2012]EWHC821(Ch).pdf> accessed 29 December 2013
This case commentary analyses the recent Chancery Divisions decision in
Lilleyman v Lilleyman [2012] EWHC 821 (Ch). This case involves the
application of the Inheritance (Provision for Family and Dependants) Act 1975
and its implications. The commentary pointed out that the judgments in this
case sets out a clear approach to courts decision-making process with
regards to granting application under the 1975 Act and to big money- short
marriages situations. This case also displayed the unwillingness of courts to
continue the idea of life interest for widows in matrimonial property and would
prefer a clean break, which helps Doriss case in the event she contests for
the matrimonial home. This source, penned by a practicing lawyer and
published author, gives a technically accurate account of the case facts and
highlighted the other important and noteworthy points from the judgment. The
source was utilised for its clear description of factors that courts consider in
granting application under the 1975 Act. This gives us a precedent to look to
for Doriss case if she makes a similar application. However, the discussion of
the criteria under section 3 of the 1975 Act, which courts consider in granting
an application, was shallow and could be improved by giving a more critical
analysis.
(204 Words excluding citations)

Law Commission, Cohabitation: The Financial Consequences of Relationship

Breakdown (Law Com No 307, 2007)
This report was produced to make recommendations to Parliament relating to
financial consequences upon ending cohabiting relationships by separation or
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death. The paper describes the inadequacies in the current law faced by
cohabitants upon separation and death of partners and proposes new scheme
to address such inadequacies. The paper was utilised for its discussion on
provision for cohabitants on death, which primarily focused on Inheritance
(Provision for Family and Dependants) Act 1975. It provided a good source of
information on how the Act can be enacted for financial provision for
cohabitants and gave a definitive answer on the debatable meaning of
reasonable financial provision in the Act. It also noted the loopholes present
in the Act, which requires some changes or reforms, thus giving us an insight
on how the law on financial provision for cohabitants under the Act may
develop in the coming years. This report is helpful for Doris in deciding her
eligibility to apply for financial provision for any situation she may be in and
the chances of success. The source is accurate and comprehensive on the
discussion of the current law and well researched, using both qualitative and
quantitative research methods. However, it may not be authoritative as the
reports main purpose was to persuade Parliament to consider reforms and
the proposals have not implemented.
(219 Words)

Law Commission, Intestacy and Family Provision on Death (Law Com No

331, 2011)
This report was produced to review the law relating to wills, intestacy and
family provision, with the purpose of presenting two draft Bills that would
enable their recommendations on these areas to be implemented. The paper
talks about the current law of intestacy and family provision, and goes on to
discuss how the law provides for each category of relationship with the
deceased. The source is unbiased and reliable as the work is grounded in
wide-ranging legal research. It is clear in explaining how the modern law of
intestacy (which dates from the enactment of the Administration of Estates Act
1925), will divide the deceaseds assets accordingly. This comprehensive
information is utilised to inform Doris of her entitlement to her partners assets
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if she decides to marry him. The paper is also extremely useful in the
discussion on the position of cohabitants on intestacy. It recognises that
cohabitants have no place in the intestacy rules and goes on to make
recommendation to include them. However, the source may not be significant
as its main content revolves around the discussion of consultation responses
for the proposed reforms. This results to limited utility of the report.
(194 Words)

Lush D., Cohabitation and Co-ownership Precedents (Jordan Publishing

Limited 1993)
In this publication, Lush focuses on five main issues revolving around
cohabitation; Declaration of Trust, Cohabitation Contracts, Children, Wills, and
Miscellaneous Documents. He explored the documentary aspects of
cohabitation and discusses the differences in legal position between married
and unmarried couple, followed by precedents for each issue. Lush is
politically neutral on the current law of cohabitation but yet not too impassive
or inert. The main purpose of publishing the book was for its usage of the
user-friendly precedents for practicing lawyers. The book is generally well
researched; relevant statutes and cases are frequently cited to support its
statements. However, the book may be less reliable now due to its early
publishing date. For example, it failed to consider the impact of the House of
Lords decision in the leading case of Stack v Dowden [2007] UKHL 17 on the
issue of trusts. The significance of this book is that it provides an in-depth
study of relevant statutes for the five issues mentioned above. This book was
mainly utilised for the study of law governing wills. It identifies and scrutinises
how the law (statutes) distinguishes itself and treats married and unmarried
couples differently with respect to will, which gives us an idea on the position
that Doris will be in should her partner passes away.
(212 words excluding citations)

Student ID: 200745212

Law 2330 Family Law

Word Count: 1,913

Standley K. and Davies P., Family Law (8th edn, Palgrave Macmillan Law
Masters Basingstoke 2013) paras 4.1-4.10
This chapter of a general textbook on family law discusses the property rights
of married spouses, civil partners and cohabitants. It gave an insightful
comparison on the position of spouses and cohabitants with regards to real
and personal property upon relationship breakdown and death of partners. In
this chapter, Standley and Davies made it clear that the position of
cohabitants is weak and seems to support reforms on law governing
cohabitants. The source is generally well researched and accurate on the
current legal positions of spouses and cohabitants as statutes and case laws
are always mentioned to support any assertive statements. The significance
of this source is that it is not only penned by leading academics but the law
used in the book is up to date given its recent publication. However, the main
crux of this chapter lies in discussing ways cohabitants can acquire a right of
ownership in the family home using trusts, which is not so relevant for Doriss
case. The key utility of the source was in considering the devolution of
property upon death, for both intestate and non-intestate for Doriss situation.
It also gave a detailed and comprehensive explanation on application of the
Inheritance (Provision for Family and Dependants) Act 1975, which is helpful,
given that Doris was greatly concerned about financial provisions.
(218 Words)

Welstead M. and Edwards S., Family Law (4th edn, Oxford University Press
2013)
This textbook on family law discusses the status and their ensuing rights of
surviving spouses and cohabitants. It highlighted the differences between
spouses

and

cohabitants with

regards to

issues such

as funeral

arrangements, non-intestate and intestate succession. Lastly, it discussed the

bars that spouses and cohabitants have to overcome in order to succeed in
an application under the Inheritance (Provision for Family and Dependants)
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Act 1975. The content is easy to understand with sub-headings used to

provide a clear structure. It provides an accurate account of the law, citing
relevant authorities to support its statement. There is a bonus of relevant case
summaries, which gives practical examples on the application of law. This
book is significant as it was penned by leading academics and Welstead was
also a contributor to the law commission report regarding intestacy and family
provision claims on death. The source is used for its succinct and detailed
explanation of the 1975 Act as it explored individual sections of the Act. It was
helpful in considering what Doris has to prove (e.g. actual dependence) to
succeed in claims under the Act. However, the legal analysis of the leading
case, Lilleyman v Lilleyman [2012] EWHC 821 (Ch) was limited and also
failed to consider how the principle in this case could be reconciled with past
cases such as Cunliffe v Fieldon [2006] Ch 361.
(219 Words excluding citations)

(Total Word Count for Part 2: 1,266)