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Law Commission publishes Cohabitation report

On 31 July the Law Commission published its recommendations on Cohabitation: The Financial Consequences of Relationship Breakdown to Parliament. The report contains final recommendations regarding the law as it affects cohabitants' property and finances when their relationships end, whether by separation or by death. The Government will now decide whether it accepts the recommendations and, if so, when it will introduce legislation into Parliament to implement them.

Scope of the report
The project looked at people who are living together as a couple, but who are not married to each other or who have not formed a civil partnership (the status available to same-sex couples who register their relationship).

The project concentrated on the following issues:

The Law Commission project focused solely on cohabitants and did not consider relationships between blood relatives or "caring" relationships, nor did it concern itself with commercial relationships (landlord and tenant or lodger).

Tax, child support, parental rights and next of kin rights were beyond the scope of the Commission's work.

The Commission's recommendations
The Commission recommends that on separation a remedy of financial relief should only be available where:

The recommended scheme would apply only to cohabitants who had had a child together or who had lived together for a specified number of years (a "minimum duration requirement"). The Report does not make a specific recommendation as to what the minimum duration requirement should be, but suggests that a period of between two and five years would be appropriate.

The Commission rejects an "opt-in" scheme, which couples would be required to sign up to in order to be able to claim financial remedies on separation. Instead, it recommends that, as a default position, the scheme should be available between all eligible cohabitants.

However, it suggests that a new scheme should allow couples, subject to necessary protections, to disapply the statute by means of an opt-out agreement, leaving them free to make their own financial arrangements.

It would not be sufficient for applicants simply to demonstrate that they were eligible for financial relief and that the couple had not made a valid opt-out agreement disapplying the scheme. In order to obtain a remedy, applicants would have to prove that they had made qualifying contributions to the parties' relationship which had given rise to certain enduring consequences at the point of separation.

The scheme would therefore be very different from that which applies between spouses on divorce.

The impact on marriage
The Commission considers that the type of reform recommended would not harm marriage. It states that research evidence indicates that the law is low down the list of reasons why people get married and that those who choose to marry for family, religious, social, cultural or other personal reasons will continue to do so, whether or not financial relief is made available between cohabitants. In any case, marriage would remain legally distinctive because of its different regime of financial relief.

Reaction of interest groups
Resolution has welcomed the Law Commission's report. It cites findings from a survey of family lawyers in England and Wales which has backed the case for urgent reform of the law affecting couples who live together.

More than 70% of family lawyers surveyed stated that, in their experience, the law badly fails to protect the interests of cohabiting couples when they separate. The lack of any legal remedy, as well as costs and uncertainty of outcome were cited as the main reasons for this failure.

"These survey results clearly show the need for reform of the law. We fully support the Law Commission's proposals for reform of cohabitation law published today, and will be pressing the government to move forward and introduce new legislation without delay," said David Allison, Chair of Resolution's cohabitation law reform task committee.

Single parent charity One Parent Families/Gingerbread also welcomed the Law Commission's proposals. Commenting on them, Head of Policy and Research Kate Bell said: "We have long argued that the existing law is complex and is all too often unable to deal fairly with the financial consequences of relationship breakdown. As the Law Commission states, the existing situation often mean that carers, and therefore their children, often suffer hardship when a relationship ends. Most people accept that there should be a fair outcome when a relationship breaks down, particularly where a couple have had children, and most people are surprised that this is not the case. The Law Commission proposals are a step in the right direction."

The report can be downloaded from the Law Commission's website at http://www.lawcom.gov.uk/cohabitation.htm
The Resolution response can be read in full at http://www.resolution.org.uk/index.php?id=17&no_cache=1&tx_ttnews[tt_news]=358&tx_ttnews[backPid]=11
For the One Parent Families/Gingerbread response, go to http://www.oneparentfamilies.org.uk/1/lx3x1olx85x1oix9315x1/0/0/010807/0/0//rights-for-cohabiting-couples-press.htm

An article by Stuart Bell, the Law Commissioner who heads the Property, Family and Trust Law team, will appear on the Family Law Week website within the next fortnight.