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LGBT: Succession

This content applies to England

Regulations regarding succession under the Civil Partnership Act 2004.

Background

Historically, succession rights for same-sex cohabitees have been established through two important cases.[1] The Civil Partnership Act 2004 made changes to legislation to reflect these cases, and extended succession rights to cover most tenancy types.

The new situation, following commencement of the Civil Partnership Act 2004 on 5 December 2005, is that where there are increased rights in succession for married couples, these rights are now available to registered civil partners. Where rights are available to cohabiting heterosexual couples, these rights are available on the same basis to cohabiting same-sex partners. The sections below outline the resulting situation regarding succession.[2]

Rent Act tenancies

Both civil partners and those living as if they were civil partners are entitled to succeed to a full Rent Act tenancy.

Assured tenancies

Both civil partners and those living as if they were civil partners are entitled to succeed to an assured tenancy.

Secure tenancies

Civil partners can succeed to the tenancy as long as they were living together at the time the tenant died. Those living together as if they were civil partners will be able to succeed if they were living together for a year before the death of the tenant.

Introductory tenancies

Civil partners can succeed to the tenancy as long as they were living together at the time the tenant died. Those living together as if they were civil partners will be able to succeed if they were living together for a year before the death of the tenant.

Demoted tenancies

Civil partners can succeed to the tenancy as long as they were living together at the time the tenant died. Those living together as if they were civil partners will be able to succeed if they were living together for a year before the death of the tenant.

Assignment

The Act also clarifies the law relating to assignment of tenancies, bringing the rules for same-sex couples into line with those for heterosexual couples.

Living as if civil partners

Factors such as financial arrangements, living arrangements, sexual relationship and the presence of any children are among the facts that can help determine whether a same sex couple are living as if they are civil partners. However, the critical factor is likely to be whether the couple are in a publicly acknowledged committed emotional relationship.[3] Although this does not mean that the couple must have to have been open with the landlord about the nature of their relationship.[4]

 

Further information can be found in the section on Assignment and the section on Succession.

[1] Mendoza v Ghaidan [2004] UKHL 30, HL; Fitzpatrick v Stirling Housing Association (1999) 32 HLR 178, HL.

[2] Sch.8 Civil Partnership Act 2004.

[3] JP v Secretary of State for Work and Pensions (IS) [2014] UKUT 0017(AAC); Baynes v Hedger and others [2008] EWCH 1857; Nutting v Southern Housing Group [2004] EWHC 2982, Ch D.

[4] see for example the comment on Nearly Legal.

 

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