Cohabiting Couples Recommendations Of The Law Commission Report
My last Article for this Paper on Cohabitation was marked “Watch this Space” and in it I promised to write another Article on Cohabitation once the Law Commission Report had been published. To recap, unmarried couples, at present, have little financial protection if they separate. There is no such thing as a “Common Law Spouse”.
The Report is now available and it’s proposals do not affect all those cohabiting in that it does not address issues such as tax, social security, insolvency next-of-kin rights or child support all of which are excluded from the proposals.
In a nutshell it proposes that it’s recommendations should only be available to those the couples who satisfy certain eligibility requirements.
This limits the cases in which a change of law is proposed to “eligible couples” i.e. to those couples who:-
Had a child together or
Lived together for a minimum period.
The report does not make a recommendation as to what that minimum period should be but suggests that a period of between 2 and 5 years would be appropriate.
What is proposed is that any new law would bind all “eligible couples” and that if a couple did not want to be bound by the new regime they would have to take active steps to opt out probably by entering into an “opt-out agreement” leaving them free to make their own financial arrangements. What form this agreement would take and when it would need to be entered into remains to be seen.
In addition to living together for a set period the proposals require couples to prove that they had made contributions to the relationship which gave rise to enduring consequences at the point of separation i.e. simply living together for however long would not give rise to any presumed entitlement to share in any pot of money or property which had been built up during their relationship.
The report goes on to indicate that “ in broad terms the scheme would seek to ensure that the plusses and minuses of the relationship were fairly shared between the couple”
The person claiming would have to show that they had a continuing economic disadvantage as a result of contributions made by them to the relationship.
The amount of that person’s award would depend upon the extent of the benefit retained by the other person or the continuing economic disadvantage to the person claiming as a result of contributions made by them.
The Court in reaching it’s decision would give first consideration to the welfare of any dependant children.
It seems that some people remain concerned that the making of law regulating those couple who cohabit may harm the institution of marriage but research has shown that in other countries where law in this area has been adopted there is no evidence of a drop in marriage numbers as a result of the introduction of a new law between cohabitants.
If these proposals are accepted in law they may strike fear into those who do not want to be bound by the legal responsibilities imposed on those who marry.
I must emphasise that these remain as proposals only prepared by the Law Commission to advise the Government on possible legal reform relating to cohabitants and are not yet Law.
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Rosemary Smith