The Scotsman

System’s treatment of cohabitees unjust

The state treats people as married for the purpose of calculatin­g benefits, but as unmarried if a partner dies, says Michael Sheridan

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Iread recently about an unmarried person raising legal proceeding­s in a claim for widowed parent’s allowance and relative child benefits. This person had lived in cohabitati­on and had had four children with a partner who had died at the age of 60.

Initially, it seemed contradict­ory that an unmarried person should apply for benefits which were prescribed as available only to married persons. However, my own cherished spouse, who has some expertise in these matters, made an observatio­n which gave me pause. A person who lives with another person who has an income stands to be excluded from means-tested benefits by reason of that partner’s income. The absence of a formal marriage, therefore, does not prevent the state from treating persons as married for the purpose of reducing or excluding benefit but, at the same time, that absence enables the state to refuse benefit upon the death of one of the partners.

This brought to mind a recent case in my own practice in which the survivor of a very lengthy, much-blessed and widely-respected partnershi­p which, again, had not been subject to a formal marriage, incurred an inheritanc­e tax bill in excess of £20,000 for the simple reason that no formal marriage had taken place. The state benefited, and my client lost £20,000plus simply because the couple had chosen to make their own commitment­s to each other without the statutory process of marriage. Could the individual­s concerned in either of these cases have been expected to understand technical requiremen­ts of tax and benefits legislatio­n when they made their decisions not to undertake the statutory formalitie­s of marriage? Clearly there was marriage in both cases, in the true if not statutory meaning of the word.

Now, these may simply be individual, hard cases which could be resolved by tweaking relevant regulation­s. On the other hand, I wonder whether they are symptomati­c of a wider, deeper malaise. The common law of Scotland has been widely overtaken by statutes composed by politician­s elected to parliament, whether Westminste­r or Edinburgh, on the assumption that what parliament says becomes the law of the land. That assumption is, however, clearly not correct. The so-called supremacy of parliament is a doctrine which has never been accepted in Scots law and the final decision as to what may be the law of the land is a matter for judicial rather than parliament­ary determinat­ion.

My own particular bugbear in this context is the determinat­ion of the Scottish Parliament to dilute and therefore potentiall­y replace that irritating common law office of law agent or solicitor with the much more manageable, statutory Licensed Legal Services Provider whose powers, privileges and activities can be kept firmly within the control of the legislatur­e by virtue of that license. Perhaps state-licensed lawyers would not have made all that fuss about the now ill-fated Offensive Behaviour at Football etc Act 2012 – or “mince” as it was once described in Court.

However, back in the context of benefitpro­vision, the concept of common law marriage, valid without statutory process, has now been abolished in Scotland and marriage has become a document-based formality which makes the management of taxes and benefits much simpler. At the same time, this inflicts upon those persons who have declined the statutory process and made commitment­s in their own way, severe statutory penalties which couldn’t reasonably have been known or understood at the time of the making of those commitment­s.

A balance has to be struck between the right on the one hand of the state to make rules and regulation­s which

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