Looking back at Burden and Burden v. the UK: Are siblings being legally overlooked?

Written by: Hannah Handzar
Edited by: Charlie Jones

Introduction

In 2008, the European Court of Human Rights (ECHR) in Burden and Burden v. the UK simplified the substantive differences between formally recognised marriages and civil partnerships as well as a sibling relationship in the context of Inheritance Tax reliefs. It was argued by the Burden sisters that these reliefs should be extended to other familial relationships, in this case, the kinship between the two siblings who had lived together for 31 years. Whilst broadening the tax exemptions to other familial relationships in itself is susceptible to a wide range of abuse, and its likening may lead to the exacerbation of pressures on a state’s welfare system, the ECHR has acknowledged the absence of any alternative in these contexts. A way forward might follow the criteria set out by the UK House of Lords in 2004, a system that would allow other familial relationships to be legally recognised whilst simultaneously ensuring they would meet all the stringent requirements.

Historical Background  

Property law is illustrative of an area that, for much of its history, has been characterised by its barriers for certain demographics to receive equal access and treatment to others. Most notably, for the vast majority of British history, women were barred from the legal right to property ownership. The Early Modern British practice of primogeniture stipulated that, most often, the full property inheritance be passed to the eldest son, founded on the principle of preserving the estate better for future generations. William Blackstone wrote of “that sole and despotic dominion which one man claims and exercises of the external things of the world, in total exclusion of the right of any other individual in the universe” (Blackstone, 1765). Property, therefore, encompassed this defining right reserved from women.

Changes were seen not only in the right to property ownership, most notably made by the introduction of the Married Women’s Property Act (1870), but also began to be seen in inheritance rights and obligations. Whilst people were often left to freely decide whom to leave their property to (Daunton, 2001), the differentiated rates of the 1853 Succession Duty for different beneficiaries of the inheritance encouraged the practice of leaving property to spouses, given the lowest rates to be paid, followed by lineal family members, siblings, more remote consanguinity, and finally those not related. Spouses, lineal relations, and siblings were awarded the most preferential treatment. The changes to these rates throughout history were many and complex, and its most recent regulation in the Inheritance Act 1984, coupled with the Civil Partnership Act 2004, established that estates transferred to only spouses or civil partners are exempt from inheritance taxation. Burden and Burden v. The United Kingdom presented a test as to whether, in certain cases, this preferential treatment should be extended to other family members.

 The Burden and Burden v. the UK decision

In Burden and Burden v The United Kingdom, the European Court of Human Rights considered discrimination under Article 14 of the Convention as well as the right to peaceful enjoyment of property under Article 1 of the Protocol No.1 regarding siblings. The Court ultimately ruled that two sisters who had lived together on a property inherited from their parents for the last 31 years were not exempt from the payment of the UK’s inheritance tax, standing at 40%. Whilst the Court accepted that the inheritance tax concession was to be awarded to married couples and civil partnerships, it recognised that this left the sisters without any alternative in this context.

In this case, the UK government asserted that the sisters could not claim to be in a comparable relationship to that of a married couple or civil partnership (Civil Partnership Act 2004) as the latter two chose to be connected by a formal relationship, recognised by law, with a number of legal consequences; for sisters, the relationship was said to be an accident of birth (Burden, 2008). However, Judge Borrego’s dissent refers to a margin of appreciation that the majority either missed or chose not to deal with. Here, he expressed that acceptance of the argument that the sisters did not have a comparable relationship to a married couple or civil partnership doesn’t take into account the fact that the sisters had no choice but to be connected by a formal relationship recognised by law for tax purposes, given that legal recognition of their kinship did not exist.

Likewise, the Court’s acceptance that “the relationship between siblings was indissoluble, whereas that between married couples and civil partners might be broken” (Burden, 2008) was also said to simplify the substantive difference between the two, given today’s context with dramatic expansions of one’s liberty, in which all forms of relationships may be broken or strengthened (West, 1998).

This is further exemplified by the Court’s reliance on the notion that no financial commitment arose by virtue of this relationship between siblings. In the case of married couples, the ECHR cites that there exists a financial commitment which  provokes a special legal status for their partner. This status connotes that if the married couple were to separate, the court is able to divide their property and order financial provision. The ECHR believe that this could not possibly be done between the kinship of sisters given the lack of this formally recognised financial commitment (Burden, 2008). This overlooks the fact that the sisters owned all assets jointly and left their respective shares to one another in the will, identical to the habits of married couples.

Despite this, one may take the view, as the UK government did, that this is founded on the financial implications of formally recognising other relationships in the context of inheritance tax exemptions, given that the annual income from inheritance tax was approximately 2.8 billion pounds sterling (Burden, 2008). However, as demonstrated by Lindsay v the UK (1986), taxes are made workable precisely by categorisations of taxpayers and those exempt, and these taxation schemes must allow flexibility in the face of apparent inconsistencies and injustices.

Should consanguinity be legally recognised in this context?

The debate as to whether the inheritance taxation exemptions should be extended to analogous familial relationships, such as that of the Burden sisters, brings to light the definition of ‘family’ itself, a topic which has more recently been subject to social and legal debate (Herring, 2001). Given the complexity of human relations, it has been argued that inheritance taxation benefits enjoyed by married couples and civil partnerships should be extended to other familial relationships and contexts, despite being atypical (West, 1998).

Whilst acknowledging this complexity, to ensure effective state regulation and application of reliefs for the family unit, it also requires the legislature and judiciary to mirror these changes in societal norms and acceptances. Article 16 of the Universal Declaration of Human Rights states that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State” (UDHR, 1948). Thus, despite the changing social understandings of what might comprise a family unit, legal benefits such as those found in inheritance taxation only stem from when a group of persons is regarded as a family under the legislation and practices of the State itself (ICCPR General Comment No. 19, 1990).

Lord Alli of the UK House of Lords articulates that, among others, this recognition would be most prudent for siblings who share a home or a carer who looks after a disabled relative (Burden, 2008). Others have propositioned that this be extended further. Notably, whilst some refer to the need for legal recognition of any deserving carer (Barker, 2014), others argue for moving beyond conjugality (Polikoff, 1993).

Whilst this inclusion of siblings who share a home or carers who look after a disabled relative would indeed bridge the legal gap in these contexts and have these forms formally recognised for tax purposes, it is also true that such an extension may provide legal instability. Ultimately, its overuse and susceptibility to abuse stems from the fact that the more people legally recognised to be exempt, the higher the cost incurred by the State given such a legal recognition would extend beyond just tax purposes. The effects of this could be wide-ranging in a State’s legal and welfare system: one can invoke civil as well as monetary rights, along with, for instance, preferential immigration treatment (Shakargy, 2021). Whilst this is true, if such an implementation was subject to strict criteria, its impact may not be as extensive as feared, as it would merely become an empirical matter, subject to proof and argumentation (Gross, 2013).

To solve these potential downfalls of the formal recognition in the context of inheritance taxation of familial relationships outside of marriage and civil partnerships, such as siblings who share a home or who look after relatives in need of care, it would be best to move forward by formulating such expansions in a similar manner as used by the UK House of Lords in their attempted amendment to the Civil Partnership Bill in 2004. Here, they referred to ‘degrees’ of such relationships and set out criteria: being over 30 years old, cohabiting for at least 12 years, and not being married or in a civil partnership with another. Such a system would allow people further liberty for those in atypical family structures, without imposing too heavy of a burden on the State to regulate cases individually (Burden, 2008).

Conclusion

The decision of the European Court of Human Rights in Burden and Burden v. the UK recognised a legal gap but misplaced its reliance on the margin of appreciation in light of the injustice faced, given the lack of alternative formal recognition of their relationship. Though there are a number of potential implications on a State’s welfare system by broadening the inheritance taxation exemptions and legally recognising these familial relationships, establishing unambiguously defined State mechanisms might provide a way forward. These would require the delimitation of the contexts in which these benefits would be extended. In doing so, there could be a controlled recognition of these relationships to ensure that certain analogous circumstances to marriages and civil partnerships are no less protected by the State.

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