Were the Burden sisters victims of discrimination when they were denied the inheritance tax exemption available to married couples and civil partners? No, said the Grand Chamber of the European Court of Human Rights, in April 2008, the fact that cohabiting siblings do not qualify for that exemption does not violate Article 1 of the First Protocol to, and Article 14 of the European Convention on Human Rights.
The case of Burden and Burden v UK concerned two unmarried sisters, the applicants, in their 80s who have lived together, in a stable, committed and mutually supportive relationship, all their lives. For the last 31 years they have shared a house built on land that they inherited from their parents. They have each made a will leaving all their property to the other. The value of their jointly-owned assets had increased substantially over the years to the point that each applicant’s half-share exceeds the value of the current threshold for inheritance tax. Therefore, it is highly likely that inheritance tax will become payable when the first one dies. The applicants were concerned that the requirement to pay the tax would force the survivor to sell the family home.
This was unfair, alleged the applicants, because married couples and partners under the Civil Partnership Act 2004 are granted an exemption and would not have to pay any inheritance tax. And, had the sisters not been blood relations, they could have avoided this problem by entering into a civil partnership. The Act makes a couple ineligible to form a civil partnership if they are within the prohibited degrees of relationship, including siblings.
Before reaching the substantive issue in this case, the sisters had to overcome some procedural hurdles. The court first addressed the issue of whether the applicants could be deemed victims of a violation of their human rights rather than merely potential victims. The UK government submitted that they were not: neither applicant had yet been required to pay inheritance tax, that at least one of them would definitely never have to pay it, and since it was not inevitable that one would predecease the other, it was merely speculative whether either sister would suffer this loss. The court found that given the sisters’ advanced ages, their wills, and the value of their property, there is a real risk that, in the not too distant future, one of them will be liable for substantial tax on the property inherited from her sister. In these circumstances, the applicants can be deemed victims.
The court also rejected the government’s argument that the applicants had not exhausted all domestic remedies to the alleged breach. In fact, the applicant’s claim had not been presented to any national instance. The court held that there was insufficient evidence to find that a domestic remedy was available in the UK, thereby removing this hurdle.
On the discrimination issue, the court found against the sisters. The sisters claimed to be in a position similar or analogous to other cohabiting couples, but the government countered that there was no true analogy because the sisters were connected by birth, rather than any decision to enter into a formal legal relationship. The very essence of the connection between siblings is consanguinity which is absolutely barred in marriages or civil partnerships. The court held that the promotion of marriage, and long-term same-sex relationships, is a legitimate social aim and the government cannot be criticized for granting fiscal advantages to couples in such relationships. Consequently, there had been no violation of Article 14 of the European Convention of Human Rights taken in conjunction with Article 1 of Protocol No. 1.
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