Cohabitation Bill [HL]

House of Lords

Session 2008 - 09
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Other Bills before Parliament

Cohabitation Bill [HL]

Cohabitation Bill [HL]
Schedule 2 — Amendments: financial provision on a cohabitant’s death
Part 1 — Amendments of Inheritance (Provision for Family and Dependants) Act 1975
19

(b)
grant leave subject to such restrictions and conditions (including
conditions as to the allowing of time for payment or the making of
payment by instalments) as the court considers proper, or
(c)
remit the payment of the arrears or of any part of them.
      (4)
An application for the grant of leave under this paragraph must be made in
5
such manner as may be prescribed by rules of court.
Power to make consequential and supplemental provision
17    (1)
The Lord Chancellor may by order make such further provision as the Lord
Chancellor considers appropriate for the purposes of, in consequence of, or
for giving full effect to sections 10 and 11 and this Schedule.
10
      (2)
An order under sub-paragraph (1) may include provision for or in
connection with, in particular—
(a)
the making of financial settlement orders having regard to pension
benefits,
(b)
the assumption of responsibility for payments required by financial
15
settlement orders in cases where compensation is payable under
Chapter 3 of Part 2 of the Pensions Act 2004 (c. 35) (pension
protection),
(c)
the circumstances in which financial settlement orders may be varied
or be revoked,
20
(d)
the circumstances in which arrears are to be unenforceable without
the leave of the court,
(e)
orders for repayment where periodical payments have continued
after they have ceased to be required, and
(f)
the alteration after the death of the parties of relevant agreements in
25
respect of which a consent order has been made under Part 2 of this
Schedule.
Schedule 2
Section 19

Amendments: financial provision on a cohabitant’s death
Part 1
30
Amendments of Inheritance (Provision for Family and Dependants) Act 1975
1
In this Part of this Schedule “the 1975 Act” means the Inheritance (Provision
for Family and Dependants) Act 1975 (c. 63).
2
In section 1 of the 1975 Act (application for financial provision from the
deceased’s estate)—
35
(a)
in subsection (1)(ba) omit “or 1B”;
(b)
for subsection (1A) substitute—
“(1A)
This subsection applies to a person if, immediately before the
deceased died, the person and the deceased were cohabitants
within the meaning of the Cohabitation Act 2009.
40

Cohabitation Bill [HL]
Schedule 2 — Amendments: financial provision on a cohabitant’s death
Part 1 — Amendments of Inheritance (Provision for Family and Dependants) Act 1975
20


(Section 14B of this Act also sets out limited circumstances in
which a former cohabitant may apply for an order under
section 2 of this Act).”;
(c)
omit subsection (1B);
(d)
after subsection (2)(aa), insert—
5
“(ab)
in the case of an application made by virtue of
subsection (1)(ba), means such financial provision as
it would be reasonable in all the circumstances of the
case for the surviving cohabitant to receive, whether
or not that provision is required for his or her
10
maintenance;”; and
(e)
in subsection (2)(b), after “by virtue of subsection (1) above” insert
“or section 14B below”.
3
In section 2 of the 1975 Act (power of the court to make orders), after
subsection (1)(g), insert—
15
“(h)
an order varying any settlement, including a settlement made
by will—
(i)
made on two persons, one of whom was the deceased,
who immediately before the deceased died were
cohabitants within the meaning of the Cohabitation
20
Act 2009, and
(ii)
made at any time when they were cohabitants, when
they were living together as a couple but before
becoming cohabitants within the meaning of that Act
or in anticipation of them living together as a couple,
25

the variation being for the benefit of the surviving cohabitant,
or any relevant child.”
4
In section 3 of the 1975 Act (matters to which the court is to have regard in
exercising powers under section 2), for subsection (2A) substitute—
“(2A)
Without prejudice to the generality of paragraph (g) of subsection (1)
30
above, where an applicant for an order under section 2 of this Act is
made by virtue of section 1(1)(ba) of this Act, the court shall, in
addition to the matters specifically mentioned in paragraphs (a) to (f)
of that subsection, have regard to—
(a)
the age of the applicant and the length of the period during
35
which the applicant and the deceased lived together as a
couple;
(b)
the contribution (including any contribution made by
looking after the home or caring for any relevant child) which
the applicant made whilst the applicant and the deceased
40
were living together as a couple;
(c)
any additional matter which, if the application were treated
as if it had been made under Part 2 of the Cohabitation Act
2009 (financial settlement orders), the court considers it
would be relevant in determining the application.”.
45
5
After section 14A of the 1975 Act insert—
“14B
Provision as to cases where no financial settlement order was made
after cohabitants ceased living together as a couple
(1)
Subsection (2) below applies where—

Cohabitation Bill [HL]
Schedule 2 — Amendments: financial provision on a cohabitant’s death
Part 2 — Amendments of Fatal Accidents Act 1976
21

(a)
the cohabitants have ceased living together as a couple and,
within twenty four months of ceasing to do so, one of them
dies, and
(b)
either—
(i)
no application for a financial settlement order has
5
been made under section 7 of the Cohabitation Act
2009 by one of the former cohabitants, or
(ii)
if such an application has been made, the proceedings
on the application have not been determined at the
time of death of the deceased.
10
(2)
The former cohabitant who survives may apply to the court for an
order under section 2 of this Act on the ground that the disposition
of the deceased’s estate by his or her will or the law relating to
intestacy, or the combination of the will and that law, is not such as
to make reasonable financial provision for the applicant.
15
(3)
In subsection (2) “reasonable financial provision” means such
financial provision as it would be reasonable in all the circumstances
of the case for the applicant to receive for his or her maintenance.”.
6
After section 15ZA of the 1975 Act insert—
“15ZB
Restriction on making an application under this Act imposed in
20
proceedings for a financial settlement order under section 8 of the
Cohabitation Act 2009
(1)
On making a financial settlement order under section 8 of the
Cohabitation Act 2009, or at any time after making such an order, the
court, if it considers it just to do so, may, on the application of either
25
of the former cohabitants, order that the other shall not on the death
of the applicant be entitled to apply for an order under section 2 of
this Act.
(2)
In subsection (1) above “the court” has the same meaning as in the
Cohabitation Act 2009.
30
(3)
Where an order under subsection (1) above made in connection with
a financial settlement order has been made with respect to a former
cohabitant, then, on the death of the other former cohabitant, the
court shall not entertain any application for an order under section 2
of this Act made by the former cohabitant who survives.”.
35
7
In section 25 go the 1975 Act (interpretation), insert each of the following
definitions at the appropriate place—
(a)
““cohabitants” and “former cohabitants” have the same meaning as
in the Cohabitation Act 2009;”;
(b)
““relevant child”, in relation to cohabitants in a relationship, has the
40
same meaning as in the Cohabitation Act 2009;”.
Part 2
Amendments of Fatal Accidents Act 1976
8
In this Part of this Schedule “the 1976 Act” means the Fatal Accidents Act
1976 (c. 30).
45

Cohabitation Bill [HL]
Schedule 2 — Amendments: financial provision on a cohabitant’s death
Part 2 — Amendments of Fatal Accidents Act 1976
22

9
In section 1 of the 1976 Act (right of action for wrongful act causing death),
for subsection (3)(b) substitute—
“(b)
any person who, immediately before the date of the death,
was a cohabitant (within the meaning of the Cohabitation Act
2009) in a relationship with the deceased;”.
5
10
In section 1A of the 1976 Act (persons for whose benefit claims for
bereavement damages may be made)—
(a)
omit “and” at the end of paragraph (a);
(b)
after paragraph (a) insert—
“(aa)
of the person who, immediately before the date of the
10
death, was a cohabitant (within the meaning of the
Cohabitation Act 2009) in a relationship with the
deceased; and”.
11
In section 3 of the 1976 Act (assessment of damages), omit subsection (4).