The Cohabitation Rights Bill: Where are we now?

Fourth June 2015 marked the first stage in the long journey through parliament of the Cohabitation Rights Bill, with the first reading in the House of Lords. Many will say this Bill can’t come soon enough, given the ever-rising number of people choosing to live as cohabitants rather than enter into marriage. Others will argue the status quo should remain, so as to preserve the institution of marriage.

The statistics are, however, telling. As more and more people choose cohabitation over marriage, the impetus for a change in the law grows.

According to figures released in January by the Office for National Statistics, cohabiting couples are the fastest-growing family type, accounting for 16.4 per cent of all families in the UK.

What’s more, the Marriage Foundation reported in August 2015 that marriage is becoming less prevalent among middle-income families (as well as low-income families), with the conclusion being drawn that marriage faces extinction among low earners and the middle classes. Further, with 51 per cent of women and 42 per cent of men believing they share the same rights as married couples when cohabiting (according to a YouGov poll of 2,000 adults), it is apparent that the law surrounding cohabitation is widely misunderstood.

Limited options

Time and time again, as practitioners, we are faced with telling a client that, unless they are married, the claims they can bring against a former partner are limited. Claims are limited further where:

• There are no children of the relationship (or if they are over 18), thus eliminating an application under schedule 1 of the Children Act 1989 for financial provision; or
• Property, such as the roof over their head, is not held jointly.

It may be possible to establish a claim in equity if it can be said that an implied trust has arisen. This occurs, for example, where one partner has contributed towards the purchase of the home or upkeep, or made payments towards the mortgage, thus establishing an interest despite the property not being in their name. Finally, it may be possible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if it can be shown that the applicant was a dependant.

However, the current situation can, in some cases, have devastating effects where one party is left out in the cold despite a relationship which may have lasted many years.

There would seem to be some inherent injustice with this type of situation. Without the all-important ring on your finger, your claims could go from a significant share in all assets built up during the relationship to zero. The truth of the matter is that many cohabitants are oblivious to the fact that they do not enjoy the same rights as married couples, and while parties may enter into a cohabitation agreement, this is comparatively rare.

The panacea?

What the Bill seeks to achieve is to avoid the situation whereby one party is left significantly disadvantaged following the breakdown of the relationship and to bring remedies more in line with those available to married couples. Where the parties have a child or where they have lived together for at least two years, the court would be given the power to make a financial settlement order, providing certain conditions are met. The remedies available include the payment of a lump sum; transfer of property; property settlements; sale of property; and pension sharing.

In the interests of achieving a clean break, there is no provision for periodical payments as is available to married couples under the Matrimonial Causes Act 1973.

The proposed legislation also provides that the couple may ‘opt out’ of financial settlement orders provided that certain safeguards have been met, such as the requirement of independent legal advice.

It is hoped that the Cohabitation Rights Bill will adequately respond to the ever-changing definition of ‘the modern family’. There are many reasons why couples choose not to marry: advocates of the Bill question why cohabitants should be penalised for something that has now become commonplace in our society.

At the opposite end of the spectrum, pro-marriage lobbyists warn of the threat to the institution of marriage, arguing that this will further discourage couples from getting married and that there can be no viable alternative to the stability that a marriage can bring to a family unit. Others also question whether it is fair to impose legal obligations on couples who are specifically seeking to avoid these formalities and whether an ‘opt out’ clause is an unfair imposition. SJ

Carla Ditz is an associate solicitor at Family Law in Partnership

@FLiPltd

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