John Bolch on the long running problem of cohabitants’ rights

Cohabitation|May 6th 2014

In the course of his press conference last week the President of the Family Division Sir James Munby gave his view that something should be done to tackle the ‘long running problem of cohabitants’ rights’. This is an issue that causes strong feelings – see, for example, Marilyn’s post here last Friday. Much of the strong feeling against cohabitants’ rights is, I think, due to a misunderstanding of what is being proposed. In particular, no one is suggesting that cohabitants should have the same rights as married couples.

To shed a little light on the situation I thought I would have a quick look at one set of proposals – those outlined by the Law Commission in the report they published back in 2007.

Before I do so, however, I wanted to explain the problem. The easiest way to do this is by reference to the classic scenario that the President mentioned last week. He referred to a long cohabitation with children in which the woman “has made precisely the same career sacrifices, precisely the same financial sacrifices as many women do as a consequence of marriage.” He continued:

“At the end of that process the children, if they’re below the age of 18, are entitled to certain forms of financial relief but the woman in that case is entitled to nothing at all and she may be, to use the vernacular as it were, “thrown on the scrapheap” at a time when she has lost her earning potential because of her age and because of the time she has been out of employment where there is no way she can rebuild her career…”

All family lawyers who have been practising for any length of time will have encountered a scenario like this. Whilst I know that some people do not feel that way, I think that most will agree that the woman has suffered an injustice – and that, after all, is what the law is there to remedy.

So, what is the remedy?  The Law Commission proposed a scheme with three key features:

Firstly, unlike marriage the couple must satisfy certain eligibility requirements. These are either that they had had a child together or that they had been living together for a minimum number of years. The Commission did not specify the exact number of years, but suggested that a period of between two and five years would be appropriate.

Secondly, the couple would be able to ‘opt-out’ of the scheme, if they so wished. The opt-out would be subject to ‘necessary protections’ such as being in writing, but there would be no requirement for each party to disclose their finances (as there would, for example, with a pre-nuptial agreement), as financial relief under the scheme would be intended to address the financial consequence of cohabitation, rather than to redistribute the parties’ entire financial resources.

On that point, the third key feature is that the party applying for financial relief would have to have made ‘qualifying contributions’ to the relationship, which give rise to certain ‘enduring consequences’ at the point of separation. This is another major difference from the position of spouses on divorce. The applicant would have to show that the respondent retained a benefit, or that the applicant had a continuing economic disadvantage, as a result of the contributions made to the relationship. The value of any award would depend on the extent of the retained benefit or continuing economic disadvantage and the court would have discretion to grant such financial relief as might be appropriate to deal with these matters, giving first consideration to the welfare of any dependent children.

It will be seen from the above that what is being proposed is really nothing like giving cohabitants the same rights as married couples. As Marilyn said, marriage will remain the ‘gold standard’.

Photo by  Brett Davie via Flickr

 

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(6)

  1. JamesB says:

    The counter argument that keeps coming back (which I agree with) is, if you want the protection that marriage gives then get married. The problem you mention is caused by people not getting married, therefore you need to look at why they do not and remedy that rather than marrying people without their agreement which is what you propose here and as other people than myself have remarked will worsen the situation (drive men and women apart and undermine marriage).

    While the injustice you mention I do agree isn’t nice and I wouldn’t want it for my daughters you need to look at why people are off marriage and resolving that rather than marrying people against their will. Forcing people to conform to your ideas of fairness is what really makes things bad. Bringing-in pre nups or scrapping dodgy UB petitions would help restore the credibility of marriage which has taken a dent in recent times in this country.

  2. Luke says:

    “At the end of that process the children, if they’re below the age of 18, are entitled to certain forms of financial relief but the woman in that case is entitled to nothing at all and she may be, to use the vernacular as it were, “thrown on the scrapheap” at a time when she has lost her earning potential because of her age and because of the time she has been out of employment where there is no way she can rebuild her career…”
    ==========================================

    Where a couple are married there clearly has to be some form of transition period – I would argue that if no prenup has been agreed that transition period should exist – but it should never be longer than 4 years and it certainly shouldn’t include assets that existed before the marriage. Of course the simplest way to solve all this for marriage is compulsory prenups.
    .
    What you are talking about here, however, is cohabitation – where no contract AT ALL has been signed. It really is none of the Court’s business without a contract – it needs to butt out.
    .
    As previously mentioned, if I am foolish enough to put all my money in a company called “NoHopeEnterprises” and that company goes bankrupt should I get all my money back because I was negligent and didn’t act sensibly ? Why should I be “tossed on the scrapheap” 🙂

    People have to be accountable for their actions – for instance from 5-18 children are at school for a large part of the day. Housework doesn’t take all day – so start up an internet business or take a Degree at the Open University. If you really want to sit drinking Lattes all day then make sure you find some guy who is prepared to sign a cohabitation agreement giving you a cheque each month after you break up – and if he won’t sign it find another sucker 🙂

    • Marilyn Stowe says:

      Dear All
      The Supreme Court also expressed a view on cohabitation law reform in Gow v Grant, which differed in part from that of the Law Commission. https://www.stowefamilylaw.co.uk/2012/07/07/gow-v-grant-the-supreme-court-rules-on-cohabitation/
      The government has made it clear there will be no legislative reform in this Parliament.
      Regards
      Marilyn

      • JamesB says:

        A Married persons tax allowance is another idea on the same grounds, again trying to force people to get married as the system is by offering them a bribe to do so. A better idea (and probably a better vote winner) would be to resolve the underlying issues on why people don’t marry rather than trying to force them to marry, again I am starting to repeat myself again, so will leave it there as I think I have made the points I wanted to on this thread for now.

  3. John Bolch on the Law Commission’s proposals for cohabitants’ rights - Marilyn Stowe Blog says:

    […] to my post here on Tuesday, I have been giving a little more thought to the Law Commission’s proposals for reform of the law […]

  4. Andrew says:

    Was it on this blog that somebody remarked that if your house burns down and you have not bought insurance you may be left ruined, and something ought to be done about it?

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