Family Law Reform: Rights for Cohabitees?

Will family law reform consider rights for cohabitees?

The Cohabitation Rights Bill has recently been considered further by the House of Lords. This is a proposal under which a cohabiting couple could acquire financial rights on separation. For these purposes, a cohabiting couple is defined as two people who live together for more than two years or who live together and have children.

The proposals do not go so far as to give the same protection as for married couples, but they do mean that certain contributions can be taken into account. A couple would be able to opt out of these provisions and could still make separate provision in their own written agreement (i.e. by way of a cohabitation agreement or a deed of trust). You can read a useful cohabitaiton blog here.

The proposals are still in the very early stages, and may not go on to become law. However, the record of the discussions provides an interesting insight into the possible advantages and disadvantages of providing legal protection for cohabiting couples.

The legislation has been proposed by Lord Marks of Henley-on-Thames. In support of the act he refers to some key statistics:

• In 1996, there were fewer than 3 million people cohabiting in the United Kingdom. By 2013, the figure had almost doubled to 5.9 million.

• More cohabiting couples—about 38% of them—are having children.
• 58% of respondents to a British Social Attitudes survey in 2006 thought that cohabiting couples who split up were probably or definitely in the same position as married couples.

• In 2008, a further British Social Attitudes survey found that nine out of 10 people believed that cohabitants in a long-term relationship involving children, or where career sacrifice was involved, ought to have redress on the breakdown of their relationship.

Much of the debate in the House of Lords focusses on whether the new laws would have an impact on marriage and the stability of relationships. Baroness Deech, who opposes the Bill, refers to the Prime Minister’s announcement that all government policies would be subject to a new family test. Baroness Deech concludes that these proposals “would reduce willingness to commit long-term and would greatly increase the stress of couple breakdown, significantly to the detriment of children”.

At Maguire Family Law we meet most clients at the point that their relationship has broken down. One of the things which we see causes the most stress for someone who has been in a cohabiting couple is the uncertainty and vulnerability of their financial position. Perhaps if there were one specific piece of law on which they could rely, then this may help to make matters easier to understand and therefore less stressful.

One of the people to comment on the proposals was Baroness Butler-Sloss, who is a former senior family judge. She spoke in support of the proposals and highlighted that she did not see the Bill as an attack on marriage. She does question whether the time period for cohabitation should be increased from two years, but is otherwise fully in support of what the Bill would achieve.

Baroness Butler-Sloss identified the fears which one person may have, knowing that they are not protected by law:

“Quite often one half of the couple does want to marry, but the other half does not. You cannot force a marriage. Again, regarding the woman, if she loves the man and has had children by him, what is she to do? Should she leave him and become a single mother, or should she stay with him, hoping that the relationship will continue? However, she lives in fear that when it ends, she will not have any of the rights, however limited, that this Bill would provide.”

This is a situation with which we are often confronted. Even where a client does have potential claims under the existing regime of property and trusts law, those proceedings can be potentially costly and rely on looking back at conduct over the whole of the marriage. Could you remember exactly the conversations you had with your partner when you bought your first home 25 years ago? Even 2 years ago?