Securing greater rights for cohabitants

It was heartening to hear Sir Paul Coleridge, speaking at a recent Resolution conference, voice the concerns that family law practitioners face every day as they try to navigate vulnerable people through the current archaic labyrinth of legislation and case law that governs their rights after the breakdown of a relationship.

All too often family specialists are in the unfortunate position of being the messenger bearing not just bad news, but bad news with an expensive price tag.

One of the main issues for family practitioners currently is the difficulties faced by cohabitants, and as the number of cohabiting couples is estimated at 2.9m, this is a significant proportion of the population.

In a modern society can it be right that that a couple can live together for 20 years, raise children together, yet at the end of their relationship, one partner has no rights under the present law to share in the assets built up by their former partner during their time together?

Two years

This week the new Cohabitation Rights Bill commenced its legislative process in the House of Lords and, if passed as drafted, will address many of the anomalies in the current law. This is the latest in a number of attempts to make progress on this issue in which England and Wales are out of kilter with Ireland and Scotland and many other jurisdictions worldwide.

The bill gives legal rights to cohabitants provided they have lived with their partner for two years and provided an application is made to the court within two years of any separation.

As presently drafted, if an applicant is to succeed then he or she will need to satisfy the court that either the respondent has retained a benefit or the applicant has suffered an economic disadvantage and the court will need to be satisfied that it is just and equitable to make an order.

In exercising its discretion the court must have regard to discretionary factors which very closely mirror the factors currently taken into account in financial remedy proceedings following a divorce.

These factors are:

a. the welfare while a minor of any child of both parties who has not attained the age of 18;

b. the income, earning capacity, property and other financial resources which each of the parties has, or is likely to have in the foreseeable future (including any pension, allowance or benefit paid or to be paid to either party or the eligibility of either party for a pension, allowance or benefit);

c. the financial needs and obligations which each of the parties has, or is likely to have in the foreseeable future;

d. the welfare of any children who live with or might reasonably be expected to live with either party;

e. the conduct of each party if, but only if it is of such a nature that it would be inequitable to disregard it;

f. the circumstances in which the applicant made any qualifying contribution, in particular if the respondent shows that the applicant made such contribution despite the respondent's express disagreement that it should '¨be made.

'¨In exercising discretion the '¨court will then have the power '¨to make an order for the payment of a lump sum, transfer of property, property settlements, sale of property, or pension sharing.

If approved as it is, the bill will provide many cohabitants with similar rights and obligations that apply to married parties, albeit in more limited circumstances, to recognise the difference between marriage and cohabitation.

Opt-out agreements

But it is likely to attract strong criticism from lobbyists '¨seeking to protect the position of many adults in the modern society who make a specific choice not to marry with the explicit aim of avoiding the financial obligations that marriage can bring.

The bill attempts to cater for this potential opposition by making provision for "opt out" agreements but it is still anticipated that there will be a valid criticism that uninformed adults may inadvertently assume financial obligations by living with their partner for more than two years in blissful ignorance of the opt-out provisions.

Hopefully, Sir Paul Coleridge's remarks will widen the audience for debate to ensure that family law reflects current society, not the values and views of a previous generation. SJ