For many years family lawyers have been critical of the lack of legal protection for cohabitants. It can currently be very difficult for separating unmarried couples to make financial claims against each other following the breakdown of their relationship. In bringing claims they are often forced to rely upon complex trust law which does not fully address their needs.
The 2001 census showed that in 2001 there were just over 2 million cohabiting couples in England and Wales. That was a 67% increase from the figures in 1991. Cohabitation is the fastest growing family type in the UK.
The British Social Attitudes Report 2007/8 revealed that almost 9 out of 10 people think a cohabiting partner should have a right to financial provision if the relationship is a long term one, has involved prioritising one partner’s career or includes children.
The same report revealed that in 2006 only 15% of cohabitants had a written agreement about their share in the ownership of property where that was owned by one or both of them and only 12% of people had changed their Will as a result of beginning to cohabit.
51% of people surveyed still believed the common misconception that cohabiting couples have rights as common law spouses.
The Bill’s Proposals
The Cohabitation Bill provides a framework for financial provision on the separation of a cohabiting couple or the death of one party to such a relationship.
The Bill proposes that the court should be able to make orders such as maintenance orders of up to three years duration, assistance with child care costs, lump sum orders, pension sharing orders and orders for sale or transfer of ownership of properties, provided the cohabitants comply with the eligibility criteria.
In addition, the Bill proposes to allow cohabitants to insure each other’s lives and to register the death of their partner.
Who would be Eligible to Apply for Orders?
The eligibility criteria proposed by the Bill is that a couple would either need to have a child together or have a joint residence order in respect of another child. Alternatively, a couple would be eligible after they had lived together for at least two years.
If the criteria were met either party could make an application for a financial settlement order. Within such an application the court would not be required to divide assets equally between the parties, but should be guided by the principles of trying to ensure that each party would be self-supporting as soon as reasonably practicable and that any order made would not exceed the applicant’s reasonable needs. The court should only make an order if it is just and equitable to do so.
Any claim would need to be made within two years of separation. The court would only be able to extend that time limit in exceptional circumstances.
Factors the Court would Consider
In making a decision the court would give first consideration to the welfare of any relevant children and then go on to consider the nature and duration of the relationship, including the degree of dependency between the parties.
The court would also consider the contributions made by each party to the relationship, to include financial contributions, but also the contribution made by a party in looking after the home and the children. The later being contributions that cannot always be fully taken into account under the existing law.
The court would assess the parties’ relative financial positions looking at their current and future obligations, ability to work and any economic imbalance that may have resulted from the relationship, for example by one party giving up work to look after the children.
The court would also consider any written agreement there may be between the parties setting out their intentions regarding the relationship.
It would be possible for couples to opt-out of being able to make financial claims against each other, but they would each have to obtain independent legal advice before being able to do so. The agreement would then need to be in writing and signed by both parties.
The Future
In 2007 the Law Commission recommended to the government that legislation should be enacted to enable cohabitants to make applications for financial relief upon the breakdown of their relationships.
The government has not rejected the recommendations, but has postponed a decision until after a future review of the impact of similar changes that have already been brought into force in Scotland.
The Cohabitation Bill has been introduced into parliament by Lord Lester of Herne HillQC with the support of Resolution, an organisation of over 5,000 family lawyers who are committed to a constructive, non-confrontational approach to family law matters.
Lord Lester previously successfully introduced into parliament what became the Forced Marriages Act 2007 and was actively involved in developing the Civil Partnership Act 2004 and the Human Rights Act 1998.
Should you require any advice in relation to the protection of assets when deciding to begin living with someone or in relation to possible claims upon the breakdown of cohabitation then please contact Melanie Pilmer, a solicitor in our family team, on
mpilmer@steeleslaw.co.uk
or 01603 598000.