Family Law - Additional Information

Developments in Cohabitation

We have long been consulted by clients who having separated after a long term relationship, enquire what their rights are. The answer has usually been “not much”; however, this may change.

At the present time, couples who choose to cohabit, but not marry, have no automatic right to claim maintenance for themselves or a share of their partner’s pension upon separation. This leaves many clients without adequate provision for themselves both now and in retirement. This situation is exacerbated further, if the parties have dependant children to care for, although there are other avenues that can be pursued in these circumstances. The only saving grace is the existence of jointly owned property or other jointly owned assets.

The Government announced in March 2008, that it intended to revisit this area of law, and shortly after a consultation paper was issued entitled “Reforming the law for people who live together”. Further progress was made with the first reading of the Cohabitation Bill in the House of Lords on the 11th December 2008.

Cohabitation is not that easy to define; however, the Bill suggests that cohabitation is when “any two people live together as a couple”. In addition the parties must either be the parents of, or have a joint residence order for a child, or have lived together for at least two years.

The Bill suggests on first reading, that a similar discretion may be exercised by the Court when deciding how a cohabiting couple’s assets should be divided between them as in a matrimonial case, i.e. “to take into account all the circumstances of the case, and what the Court considers just and equitable (reasonable)”. It goes on to suggest that if the couple have any children then their needs should be the first thing that the Court considers. Whilst this is familiar territory to family lawyers, there are a number of differences which for the time being appear a little “broad” in their application. For example:-

• It is suggested that the level of commitment the parties have or have had to the relationship is taken into consideration.
• Whether the parties have relied upon the other financially and there has been any degree of dependency or interdependency between the parties.
• Any award made under any legal proceedings should not exceed the claimants, (and presumably the dependants), reasonable needs i.e. housing, income etc…
• There in no presumption that assets belonging to either party should be shared or a presumption of equality pertains.
• The parties standard of living during the relationship shall not be taken into consideration
• Any award should not lead to long term responsibility as some orders do in matrimonial cases, e.g. to pay monthly maintenance for the balance of the parties lives.
• Parties are to make themselves as far as is at all possible, self-supporting and self-reliant as soon as possible following the end of the relationship.

There is a suggestion that if parties sign a contract or agreement, setting out what will happen to their assets and financial positions in the event of separation, then it may be possible to side step the possibility of a successful application being made under this proposed Bill. However, for such an agreement to work, both parties would have to have received legal advice from an experienced solicitor handling this area of work, and understand the nature and effect of the agreement. That said if the Court in time, felt that the agreement was unduly unfair, then the Court may order that it be varied or revoked.

The Bill does not give cohabiting couples the same tax privileges and pension arrangements as married couples. The only minor concession in this regard seems to be the ability to legally register a partner’s death and to be able to have an insurable interest in the other’s life.

It must be remembered that the above is all speculative at the moment. The Cohabitation Bill does not exist at the moment and there is no suggestion that it ever will. For the time being the law remains unaltered and cohabitants’ rights on separation, even after a long and committed relationship, are minimal if any thing at all.

If you would like any further information about the above please contact our Family Law Department at Grantham on 01476 591711 or at Newark on 01636 650880. Alternatively you may prefer to e-mail the Firm.

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