Posted by: vstanistreetJun24
In the last decade the office of National statistics has reported a 30% increase in cohabiting families. This totals 3.2 million people cohabiting and 17% of all families in the UK.
Worrying, a large majority still believe in the myth of a common law marriage. There is still a gaping hole in the law of England and Wales to protect cohabiting couples. Frequently, we see clients having lived with their partner for decades and now having to walk away with nothing. The reform of cohabitation law remains high on Resolution’s agenda for change.
In the absence of family law protecting cohabitees we are left with a melting pot of other remedies that may be available, such as the law of trusts and proprietary estoppel. Where children are involved child support legislation or Schedule 1 of the Children Act 1989 may assist. Or if one cohabitee has died the Inheritance (Provision for Family and Dependants) Act 1975 may provide some remedy.
It has been often considered that the above is insufficient, and the law of England and Wales in this area is well behind that of other jurisdictions. For example, in New Zealand they have the Property Relations Act 1976 with a presumption of equal sharing and provision for compensation. In the Republic of Ireland, they have the Civil Partnership and Certain Rights of Cohabitants Act 2010 which offers a needs based system of protection for cohabitees over 2 years with children and 5 years without. In Scotland they have the Family Law (Scotland) Act 2006 which has no limits on cohabitation periods but concentrates in if an economic disadvantage has been suffered by one party and dealing with the restitution of that.
So what has England and Wales done? In December 2014, Lord Marks’ Cohabitation Rights Bill was debated in the House of Lords. It was met with opposition. There were concerns it would open the floodgates to claims and concerns it would undermine marriage. Yet recently, Lord Marks has submitted his Cohabitation Rights Bill once again for ballot and we will need to monitor its rocky journey this time round. Currently we provide no safety net for cohabitees and there is public support for reform.
The Cohabitation Rights Bill will not be any kind of replacement for the remedies available for married couples under the Matrimonial Causes Act 1973. However, it aims to set up a compensatory needs based jurisdiction whereby the court can correct a disadvantage if the applicant has suffered an economic disadvantage and the respondent has retained a benefit. The Bill is aimed to protect cohabitees with children or those that have lived together continuously for three years or more. The court will also have regard for discretionary factors such a minor child, financial resources of the parties, conduct of the parties and circumstances of qualifying contributions. There is provision also for parties to opt out of this legislation by written agreement.
I am doubtful whether this will become law anytime soon in England and Wales anytime soon. So what is the best solution in the current climate? Cohabitation Agreements are the only proactive step cohabitees can take when one party moves in the other’s property. They are enforceable in contract law and it something parties should consider. It can cover what will happen to the family home, other properties, bank accounts, debts, gifts and chattels upon separation. It can also document what contributions each party will make to the mortgage and household expenditure.
Elizabeth Hughes – Assistant Solicitor