'Long overdue' cohabitation laws urgently needed

‘Long overdue’ legislation to protect separating cohabiting couples and their families should be introduced ‘as soon as possible’, lawyers have argued, almost ten years since the Law Commission recommended protecting non-married couples.

Figures published by the Office of National Statistics last week revealed that cohabiting couple families are now the fastest growing family type in the UK, with 3.3 million such families documented in 2016, more than double the 1.5 million recorded in 1996.

‘A legal framework of rights and responsibilities for cohabitants upon separation should be introduced as soon as possible,’ said Nigel Shepherd, chair of Resolution and head of family law at Mills & Reeve, ahead of a national cohabitation debate this Thursday.

The family lawyers organisation recently conducted a survey of its members which revealed that 88 per cent of cohabiting couples believe they should have some legal protection. Furthermore, 98 per cent said they have mistakenly thought they had the same rights as married couples.

In view of these statistics, the case for legislation seems convincing, so why have cohabitees not been given greater legal protection? In 2007, the Law Commission recommended a new scheme of contribution-based financial awards for separating couples who had a child together or who had lived together for a minimum period. Couples could opt out of the scheme if they wished.

However, in 2011, the government announced it would not be taking forward the proposals. The commission called on the next government not to delay reforms, however, a lack of political will, especially in light of more pressing issues of national interest, has stemmed any changes.

Resolution’s Shepherd told Solicitors Journal his organisation envisages a law where cohabitants would meet eligibility criteria indicating a committed relationship that would give them the right to apply for certain financial orders upon separation. This right would be automatic unless the couple chooses to ‘opt out’. ‘The court would be able to make the same types of orders as they do currently on divorce, but on a very different and more limited basis,’ he added. ‘Awards might include payments for child care costs to enable a primary carer parent to work.’

Julia Thackray, former head of the family team at Penningtons and programme leader at Central Law Training, said law reform is ‘long overdue’ and called for greater financial protection for the parties. ‘Given the growing number of couples living together it is increasingly urgent that the government return to the issue of cohabitation and financial protection,’ she said. ‘It is not about replicating a divorce model, but about some level of protection available where appropriate as a safety net and where real needs are otherwise not going to be met.’

‘The kinds of scenarios in which people are very vulnerable are where they have kids and have not worked or have worked part time, because the other contributes more to the family financially, they have then got compromised earning capacity and limited housing options, but currently there is little they can do. Also situations without kids where they have each paid to life expenses but one can’t make a property claim – their contributions to the other expenses may have allowed the property owner to, for example, pay off more of the mortgage so they have the advantage later on.’

In June 2014, Lord Marks sought to address the vacuum of law in this area and introduced the Cohabitation Rights Bill, which seeks to provide basic protections for cohabitants and for the provision of their property upon death. Under the Bill, the court is able to make a financial settlement order where there is a ‘retained benefit’ or an ‘economic disadvantage’ dependent on any ‘qualifying contributions’ made – either financial or other.

Before an order is made the court must decide whether it is fair in consideration of ‘discretionary factors’, which include earning capacities of both parties and the welfare of any child. Couples can decide whether to opt out of financial settlement orders. Cohabitants would also be afforded protection on death, not just on separation, an element Thackray described as ‘very important’.

‘There are safeguards in the Marks Bill that would provide protection in relation to insurable interests in lives, succession on intestacy, and rights relating to the home, as well as extending somewhat the possibility of a claim against the partner’s estate on death,’ she added.

Lord Marks will take part in Thursday’s debate in support of extending the legal rights to those who choose not to marry, and, no doubt, those advocating reform will want to hear what progress has been made by the Bill in the House of Lords. Without a date for the second reading of his Bill, we are no closer to ensuring cohabitation laws meet the demands of the 21st century than the Law Commission was almost a decade ago.

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @sportslawmatt