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Jean-Yves Gilg

Editor, Solicitors Journal

Illegal cohabitants

Illegal cohabitants


A recent ruling could herald a radical change to the assessment of dependency claims by foreign nationals overstaying in Britain. Philip Noble reports

An overstayer may be able to rely on their illegal residence to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 according to a recent ruling by the High Court.

In Witowska v Kaminski [2006] EWHC 1940 Ch, Mr Justice Blackburne ruled that a cohabitant was entitled to rely on their residence in this country as an illegal overstayer to establish a claim under the Inheritance (Provision for Dependants and Family) Act 1975.

The case follows on from the House of Lords ruling in the case of Mark v Mark [2005] UKHL 42 which signalled a new approach to the doctrine of illegality in a number of areas of law. In general as the law then stood, a person was not entitled to rely on their own illegal act to establish a claim or a defence. However, the House of Lords in Mark v Mark ruled that a wife was entitled to rely on her illegal presence in this country to establish her right to bring a claim for ancillary relief under the Domicile and Matrimonial Proceedings Act 1973 by reason of her domicile and habitual residence in the UK of in excess of 12 months.

Mark v Mark precedent

The parties in Mark v Mark were Nigerian nationals. They were married according to customary law of their country in 1979. This was a valid polygamous marriage.

In 1990, the husband was posted to Washington and the wife, a practising lawyer enrolled for an LLM at Queen Mary College London, visiting the country on multiple entry visas and then on limited leave to remain until 30 April 1998. Thereafter she became an illegal overstayer.

The court ruled that there was no justification for implying the words 'lawfully' into the Act to establish qualifying residence or domicile in the preceding 12 months prior to the claim.

The purpose of the qualifying period of residence/domicile was to provide an answer to the question of when the parties' connection with England and Wales was sufficiently close to make it desirable that domestic courts should have jurisdiction to dissolve the marriage. The question of residence was a factual one. The concept of domicile was not of the benefit of the propositus, but a neutral rule for determining that system of personal law with which the individual had the appropriate connection. Recognising the connection despite the illegality of a person's presence here did not, therefore, offend against any general principle that a person could not be permitted to acquire the benefit of his own illegal conduct.

In the leading judgment, Baroness Hale said: 'Unlike some of the purposes for which habitual residence may be important, the state has no particular interest one way or another. Indeed, insofar as it does have an interest, this will probably lie in accepting that those who intend to remain her permanently have acquired a domicile here, whatever their immigration status.'


'If a person has chosen to make his home in a new country for an indefinite period of time, it is appropriate that he should be connected to that country's system of law for the kind of purposes for which domicile is relevant. It would be absurd if this wife's capacity to make a will, succession to her moveable property, and her children's right to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 against her estate were not governed by the law of this country.'

Application in Witowska v Kaminski

The case of Witowska v Kaminski involved a retired Polish teacher who came to this country in 1997 on a si- month tourist visa and began living with the deceased at his home by around July that year. She returned to Poland for a short period in 1998 and was then readmitted on a further six-month tourist visa. Apart from those two six-month periods, the whole of her period of stay in this country was as an illegal overstayer.

Counsel on behalf of the estate argued that no one should be entitled to profit from their own wrongdoing and that the word "lawfully' should be implied into s 1(1A) of the Act before the words 'in the same household as the deceased'.

In particular, Mark v Mark concerned whether a court had jurisdiction to entertain a wife's application for ancillary relief. The claim by a cohabitant did not involve an issue of jurisdiction which was established by the domicile of the deceased in this country. The question rather was whether the claimant established her eligibility to make a claim under the Act in order invoke the court's discretion to benefit her at the expense of the deceased's estate. The claimant ought not to be entitled to rely on her illegal presence here to establish her claim.

Mr Justice Blackburne said:

"Whilst I accept that Mark v Mark was concerned with the court's jurisdiction, I am not persuaded that the approach of the House of Lords to that question does not point the way in this case. The question here is whether during the two years immediately preceding his death the deceased and the claimant lived as husband and wife in the same household. This is a pure question of fact. It is not dependent on whether the claimant is an illegal overstayer. The purpose of the jurisdiction is to recognise the financial claims against a deceased's estate of persons closely related to or financially dependant upon the deceased."

By way of comparison, he said that it would be absurd to deny a claim by a spouse to a share of her husband's estate on the grounds that she may have been illegally in this country.


This ruling and the ruling in Mark v Mark radically reshape the law on illegality and signals a far more pragmatic approach to persons who may have lived illegally in this country.

It follows that it will now be more difficult to defeat a claim for a share of a deceased's estate by asserting that such claims are barred because the claimant would have to rely on their own illegal act of entering or remaining in this country. The court will now look at the reality of the relationship and the extent to which the person was being maintained by the deceased.

At the same time, it may be apparent that a Claimant is likely to face deportation and that may have a bearing on the amount of award that is likely to be made '“ particularly if the cost living and their reasonable needs are likely to be less in their country of origin.