The Law Commission has today published its report Cohabitation: The Financial Consequences of Relationship Breakdown. It follows a consultation paper in May 2006.
The project examined the financial consequences of the termination of cohabiting relationships by separation or death. Few practitioners in family law would argue with the need for clarification in this area. The report addresses the “common law marriage myth” – the false idea that unmarried couples living together are treated as married after some undefined period. The existing law, the report’s summary says, is a “patchwork of legal rules” relating to property, trusts and contract which sometimes gives cohabiting partners interests in their partners’ property. This is “complex, uncertain, expensive to rely on and…often gives rise to outcomes that are unjust”. The real victims, often, are any children.
The difficulties in this respect, including the problem of trying to impose legal forms on informal relationships, whether arising by choice, circumstance or simply the passage of time, are summarised in an article on our web site called Cohabitation and Cohabitation Agreements.
Recognising that there are infinite shades of relationship, and that state involvement is not appropriate for all of them, The Law Commission suggests that financial relief in the event of separation should only be available where:
- The couple satisfied certain eligibility requirements
- They had not agreed to disapply the scheme; and
- The applicant had made qualifying contributions to the relationship giving rise to certain enduring consequences at the point of separation.
The recommended scheme would only apply where the cohabitants had had a child together or had lived together for a period which the report calls a “minimum duration requirement” of between two and five years. The report’s authors reject the idea of an “opt-in” scheme, partly because it offers no help to those vulnerable under the present law and partly because its obvious consequence – a new status of “registered cohabitant” – would not play well with the Church of England and others concerned to protect the institution of marriage (a subject on which the report lays some emphasis). Instead, they suggest the possibility of disapplying the scheme by opting out it.
It is suggested that division of property is covered by ensuring that “the pluses and minuses of the relationship were fairly shared out between the couple” rather than by any assessment of need analogous to the consequences of divorce, or by presumed entitlement derived from the length of the relationship. The court, it is suggested, will look at any retained benefit or continuing economic disadvantage, after giving first consideration to the welfare of any dependent children.
The report’s summary includes some worked examples showing how the authors see their proposals working in practice.
It is to be emphasised that this is no more than a set of recommendations for Parliament to consider. The authors acknowledge that there are many who believe that the subject needs no legislation, only a raising of awareness sufficient to dispel the “common law marriage myth”. Something along the lines set out in the report will happen eventually, but meanwhile, its mere publication may help people to understand the legal realities of their position.
The Law Commission’s web page on cohabitation includes links to the report itself, a summary and other relevant documents.
If you have any questions about cohabitation, cohabitation agreements, or any other aspect of living together or separation, please contact Lisa Bolgar Smith on 0202 242 7000.
