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Are co-habitants going to be recognised by the law?

Posted on 1st July 2015

Earlier this year the Office for National Statistics (‘ONS’) published the ‘Families and Households, 2014’ which found that cohabiting families were the fastest growing type of family in the UK with numbers increasing by almost 30% to 3 million between 2004 and 2014, however, cohabitants do not enjoy many rights which spouses and civil partners benefit from.

The Cohabitation Rights Bill was introduced to parliament last year, and had it’s first reading in the House of Lords on 4th June 2015. If it passed in its current form it would give cohabitants a number of rights currently reserved for spouses and civil partners. As well as providing criteria that have to be met to be considered as a cohabitant the Bill also seeks to make provisions where a cohabiting couples relationship breaks down in addition to inheritance laws.

In order to be categorised as cohabitants two people, (‘A’ and ‘B’) (whether of the same sex or opposite sex), must:

1: live together as a couple; and
2: either

i) are each treated in law as being a parent of the same minor child; or
ii) have a joint residence order in favour of A and B in respect of a minor child; or
iii) are the natural parents of a child that has been conceived but not yet born at the date they cease living together; or
iv) have lived together for a continuous period of at least 2 years.
3. A and B are not married to each other or in a civil partnership with each other, and are not related to each other so that their relationship would be prohibited.

Providing these conditions are met then in the event of a relationship breakdown the court would have wide powers to make Financial Settlements Orders similar to those currently available in family proceedings. In the event that one of the cohabitants died, and the surviving cohabitant met the criteria the intestacy rules would be amended so that they would be have the same inheritance rights as a surviving spouse or civil partner (assuming the deceased was not married or in civil partnership at the date of their death).

In the event the Bill becomes law then it does make provision for those couples who may have chosen not to get married so as to avoid these rights and obligations. The Bill if passed will apply to everyone unless the parties ‘Opt-Out’. If couples wish to Opt-Out then they can do so by entering into a formal Opt-Out agreement. The bill sets out various criteria for these agreement including a requirement for both parties to obtain independent legal advice before signing.

The Bill (if passed) would go some way to close the gap in the rights enjoyed between married couples and unmarried couples on separation or death, but does it go far enough? It is clear to see that there could be problem for a childless couple who have not been living together for the minimum 2 years, however it is also desirable to have certainty and avoid conclusion. However, the writer considers that a more subjective test or catch-all provision allowing the judge to take other factors beyond the length of cohabitation into account, for example the circumstances of the relationship and how intertwined the couples finances were.

For now we shall have to wait and see whether this Bill makes it to becoming law but with 3 million cohabiting couples, a number which continues to grow, many people stand to benefit from these proposed changes.

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