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’.