Peer makes fresh attempt at cohabitation rights bill

Lib Dem peer Lord Marks has introduced a new cohabitation bill, just two years after the government decided not to act on the recommendations of the Law Commission.

Lawyers and campaign groups have been calling for new laws to give cohabitants specific rights in the light of the growing number of couples living together without being married.

"We need reform, and this is a good starting point," said Julia Thackray, former head of family at Penningtons, now course director at CLT. "It would provide a safety net for cohabitants who would otherwise be at a disadvantage and simplify the situation in cases such as Jones v Kernott."

"Even if there are still be arguments where the parties can't agree, it would provide lawyers and judges with a framework to determine how these arguments should be resolved," she said.

The private member's bill intends to implement the Law Commission 2007 recommendations, proposing an 'opt out' system that would automatically bring cohabiting couples within scope unless they chose not to.

Graeme Fraser, partner at Hunters, said the draft law "highlights the lack of legal protection for couples who are not married or in a civil partnership, which form the fastest growing family type in the UK.

"In the absence of specific legislation, property claims which frequently arise when unmarried relationships breakdown are resolved under complex and outdated trust law concepts," he said. 

Under the draft bill, cohabiting couples would fall within the scope of the rules if they have "live[d] together as a couple" for two years or more, or if they had children.

Cohabitants would be given similar rights to married couples, although not as far reaching.

These would include the right to make an application to the court for a financial settlement order within two years of separation.

The court would be able to make an order where the applicant has made a qualifying contribution resulting in him/her being at a disadvantage or the respondent retaining a benefit, and the court considers it just and equitable to do so.

As in divorce proceedings, such orders could include the payment of a lump sum, the sale or transfer of property, and pension sharing, but judges would not be able to order periodical payments.

Couples would be able to opt out of scope of the proposed laws but only after receiving independent legal advice - much like prenups would, under the latest consultation, would only be enforceable if the parties have received independent advice.

But Thackray suggested the opt-out approach could be a stumbling block for the new rules, because some might, as a matter of policy, object to forcing couples by default into state regulated relationships.

The main obstacle however, will be the lack of government willingness to support the change. Lord Lester's previous attempt fell on deaf ears, and in September 2011 the then justice minister Jonathan Djanogly said the government would not be undertaking any reform of cohabitation law in this parliament.

An alternative would be to open civil partnership to straight couples but this has so far been rejected by the government.

Outgoing justice minister Helen Grant confirmed last week that the government had "no plans" to open civil partnership to heterosexual couples.

In a written answer to a question from Labour MP Andy McDonald she said there was "no evidence that significant numbers of opposite sex couples want a civil partnership".

Copyright & permissions