Next week, from 27 November to 1 December, Resolution and its 5,500 family lawyer members are highlighting the reforms needed to protect unmarried couples living together.
The current law treats cohabiting couples as two unrelated individuals, taking no account of their relationship and time together. Cohabitants have very few rights at the end of the relationship. Some may have a claim for financial support on behalf of their children under the Children Act 1989 but these remedies are not always enough to allow the main carer of the children to work. Others may have a claim in respect of property under an implied trust, but they would need to show an agreement to share the property or a contribution to the value. As a result, many cohabitants and their children will fall into poverty upon a relationship breakdown.
More than a third of people have cohabited in the past and one in nine do so currently – recent figures released by the Office of National Statistics show that 33 per cent of families are formed by cohabiting couples. The January 2008 British Social Attitude Report revealed that the public generally and more than half of cohabitants believe that couples who live together have the same protection as married couples on separation. In fact, there is no such thing as “common law marriage”.
Most cohabitants are unaware of the legal distinction between marriage and living together and of the vulnerability of their position. Unfortunately, official bodies refer to people as being married or “living together as husband and wife”, giving people a false sense of security. The scale of misconception underlines the need for legal reform.
Co-habitation – proposals for reform
- Resolution has put together the following series of proposals based on the 2007 Law Commission recommendations it believes would protect cohabitants: Cohabitants meeting eligibility criteria indicating a committed relationship i.e. who have lived together as a couple for a minimum of five years (or less in cases of exceptional hardship), or who have children together, should have a right to apply for certain financial order if they separate. This right should be automatic unless the couple chooses to ‘opt out’.
- The court should be able to make the same types of orders as they do on divorce, but on a very different basis. There should be a presumption that the couple should be financially self–supporting as soon as possible (maintenance should generally be limited to three years), there will be no presumption of equal sharing of assets and claims should be limited to reasonable needs.
- The courts should only be able to make a financial award that is fair. They should have the flexibility to make fair awards by looking at all circumstance, making sure the welfare of the children comes first, and taking into account factors such as the level of commitment to each other and financial and other contributions to the couple’s household including looking after the home and any children.
- Awards might include payments for child care costs to enable a primary carer parent to work.
- A cohabitant should need to make a claim within two years of separation. The court should have the power to extend the time limit in exceptional circumstance.
- Allowing a surviving cohabitant to apply for bereavement damages as part of a compensation claim.
- Giving cohabitants an insurable interest in each other’s lives.
Amending existing legislation allowing a surviving cohabitant to make claims on the death of the other to bring those provisions in line with the general approach taken by our new scheme above for certain separating cohabitants.