Cohabitation- The Law Commission's Proposals
Article by Janine Byrne
www.Draft-Your-Will.com

Current Law

Research has shown that the majority of people still believe in the 'common law' myth - that married couples who live together have the same rights as those who are married. However, married couples and civil partners have access to statutory remedies upon dissolution of their relationship; at present, cohabitees DO NOT.

That is not to say however that existing law does not protect the rights of cohabitees. The courts have over the years done their best to protect rights of such parties especially to avoid situations of gross unfairness. The problem however has been that such situations have to be dealt with on a case by case basis, and no judge sees the same case in the same way. Thus, there has been ample confusion and complexity in trying to develop coherent principles. The law is thus very unsatisfactory - complex, uncertain, expensive and often gives rise to outcomes which are unjust.

Additionally, the current law takes no account of children who are caught up in the dissolution of relationships between cohabitees. Due to the lack of specific remedies between cohabiting parents it is often difficult to use the existing legal measures in place which are meant and designed to protect and benefit such children.

The Law Commission's Proposals

In its report the Commission has made it clear that the proposed remedies will not be available to all cohabitees in the event of separation and should only be available to:

1. those couples who satisfy certain 'eligibility requirements';
2. the couple had not agreed to disapply the scheme and;
3. the applicant had made qualifying contributions to the relationship giving rise to certain enduring consequences at the point of separation.

1. Eligibility Requirements

   The proposed scheme would apply to cohabitants who had had a child together who who had lived together for a specified number of years. The suggested  'minimum duration' is a period of between 2 and 5 years.

2. Disapplying the Scheme

   Rather than have an 'opt-in' approach to the scheme, the Consultation group decided that an 'opt-out' approach would be more suitable. The default position is that all cohabitants who satisfy the eligibility requirements can avail themselves of the remedies unless they choose to disapply the scheme by means of an opt-out agreement thus allowing them to make their own financial arrangements.

3. Qualifying Contributions

   Satisfaction of the aforementioned criteria would not be sufficient for cohabitants to be able to claim access to the remedies proposed. Applicants would additionally have to show that they had made 'qualifying contributions' to the parties' relationship which gave rise to certain enduring consequences at the point of separation.

   Such criteria would require the applicant to show that the respondent retained a benefit or that the applicant had continuing economic disadvantage as a result of contributions made to the relationship. The value of any award would then depend on the extent of the retained benefit or continuing economic disadvantage and the court would have discretion in granting the appropriate financial relief, giving first consideration to the welfare of any dependent children.

Application of the Scheme

In their Consultation Paper the Law Commission provided two examples of where the scheme would and would not be successfully applied. The first example (Example 1) demonstrates where a claim for financial relief would be extremely unlikely to succeed and the second example (Example 2) where a remedy is likely to be obtained.

Example 1

A and B, who are both in their twenties, have been living together for 2 years in accommodation rented from private landlord. They have both worked full-time throughout the relationship and have kept their finances separate. They have shared all outgoings related to the household equally. They are now separating.

The Law Commission state that the case would be highly unlikely to invoke the proposed scheme because:

• The parties may simply be ineligible to claim at all depending on the minimum duration requirement which Parliament decides to settle on.
• If the scheme did apply, neither part would have a claim as result of having lived together. Either party would have had to have made qualifying contributions giving rise to a retained benefit or economic disadvantage.

Example 2

C and D both in their thirties had been living together for 3 years in C's house when they started a family. C's salary was sufficient to support the family and, as they both wanted the baby (E) to be looked after by D at home, they agreed that D should not return to work after E was born. Their relationship has now foundered and they are separating. E, now aged two is going to live with D.

Under the current law:

• It is very unlikely that D could establish any share in the family home and C would be under no obligation to provide for D.
• Both parents would be responsible for providing for E. For C, this would be by way of child support.
• It is unlikely in practice that an order could be made under the Children Act 1989 to provide housing for E while dependent.

Under the Law Commission's recommended scheme:

• C and D would be eligible to apply for relief because they had cohabited and had had a child together.
• C would be required to share the economic disadvantage caused g by D's contributions (forsaking going back to work in order to care for E, thus, loss of earnings, future earnings, pension loss and career disadvantage)
• C would still have the obligation to pay child support - this would be unaffected
• The Court would be more likely to be able to exercise its powers under the Children Act 1989 to make provision for the benefit of E.

Opting Out

Even where the parties are eligible within the proposed scheme they are able to make a written opt-out agreement disapplying the scheme and so be free to make their own financial arrangements. The scheme would only apply if enforcement of their agreement would be manifestly unfair in the given circumstances when the agreement was made or any unforeseen change of circumstance since then.

The contents of this article have been adapted from the Law Commissions Executive Summary of its Consultation Paper "Cohabitation: The Financial Consequences of Relationship Breakdown".

Janine Byrne holds a Bachelor of Law degree with Honours & a post-graduate diploma in Legal Practice. Also gained qualification in Wills Writing & is the owner/author of www.Draft-Your-Will.com