Cohabitation Rights in Family Law

October 1, 2015

Cohabitation Rights in Family Law – as the number of cohabiting couples increases, Family Law in Partnership associate Carla Ditz considers whether new legislation will provide these families with adequate legal protection.

The Cohabitation Rights Bill – where are we now?

The 4 June 2015 marked the first stage in the long journey through Parliament with the first reading in the House of Lords of the Cohabitation Rights Bill, a bill introduced by Lord Marks of Henley-on-Thames. Many will say that this Bill can’t come soon enough given the ever rising number of people choosing to live as cohabitants rather than enter into marriage. Others will argue the status quo should remain so as to ‘preserve’ the institution of marriage. The statistics are however telling. As more and more people choose cohabitation over marriage, the impetus for a change in the law grows.

The figures

Cohabitation is on the increase as, for whatever reason, couples choose not to marry. According to statistics released in January by the Office of National Statistics, cohabiting couples are the fastest growing family type with cohabiting couples now accounting for 16.4% of all families in the UK. What’s more, the Marriage Foundation reports in August 2015 that marriage is becoming less prevalent amongst middle income families (as well as low income families), the conclusion being drawn that ‘marriage faces extinction’ amongst low earners and the middle classes. Further, with 51% of women and 42% of men believing that they share the same rights as married couples when cohabiting (according to a YouGov poll of 2000 adults), it is apparent that society’s knowledge of the law surrounding cohabitation is widely misunderstood.

The present law

Time and time again as practitioners, we are faced with telling a client that unless they are married, the claims they can bring against a former partner are limited. Claims are limited further where:

  1. there are no children of the relationship (or if they are over 18) thus eliminating an application under Schedule 1 of the Children Act 1989 for financial provision or
  2. where property, such as the roof over their head, is not held jointly.

It may be possible to establish a claim in equity if it can be said that an implied trust has arisen. This occurs, for example, where one partner has contributed towards the purchase of the home or upkeep or made payments towards the mortgage, thus establishing an interest despite the property not being in their name. Finally, it may be possible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if it can be shown that the applicant was a dependent.

The reality is that this advice often comes as a shock and can, in some cases, have devastating effects where one party is left out in the cold despite a relationship which may have lasted many years.

There would seem to be some inherent injustice with this type of situation. But for the all-important ring on your finger, your claims can could go from a significant share in all assets built up during the relationship to zero. The truth of the matter is that many cohabitants are oblivious to the fact that they do not enjoy the same rights as married couples and whilst parties may enter into a cohabitation agreement, this is comparatively rare.

Cohabitation Rights Bill – the panacea?

What the Bill seeks to achieve is to avoid the situation whereby one party is left significantly disadvantaged following the breakdown of the relationship and to bring remedies more in line with those available to married couples. Where the parties have a child or where they have lived together for at least two years, the court would be given the power to make a ‘Financial Settlement Order’ providing certain conditions are met. The remedies available include:

  1. the payment of a lump sum;
  2. transfer of property;
  3. property settlements;
  4. sale of property; and
  5. pension sharing

In the interests of achieving a clean break, there is no provision for the payment of periodical payments as is available to married couples under the Matrimonial Causes Act 1973.

The proposed legislation also provides that the couple may ‘opt out’ of Financial Settlement Orders providing that certain safeguards have been met such the requirement of independent legal advice.

It is hoped that the Cohabitation Rights Bill will adequately respond to the ever changing definition of ‘the modern family’. There are many reasons why couples choose not to marry. Advocates of the Bill question why cohabitants should be penalised in what has now become commonplace in our society. At the opposite end of the spectrum, pro-marriage lobbyists warn of the threat to the institution of marriage, arguing that this will discourage couples further from getting married and that there can be no viable alternative to the stability that a marriage can bring to a family unit. Others also question whether it is fair to impose legal obligations on couples who are specifically seeking to avoid these formalities and whether an ‘opt out’ clause is an unfair imposition.

Carla Ditz

Associate Solicitor, Family Law in Partnership Ltd

This article first appeared in the Solicitors Journal, 8 September 2015.