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Law Commission responds to Government’s decision not to reform cohabitation law in this Parliament

‘Family justice system is in a transitional period’, says the Government

The Law Commission has responded to the written ministerial statement issued by the Ministry of Justice stating that it does not intend to take forward the Law Commission's recommendations for reform of cohabitation law in this parliamentary term.

Law Commissioner Professor Elizabeth Cooke said:

"We have received the Written Ministerial Statement responding to the recommendations set out in our report Cohabitation: The Financial Consequences of Relationship Breakdown.

"We were asked by the Government in 2005 to look at the law that currently applies to cohabitants when they separate. The Law Commission recommended in 2007 in the light of consultation that reform is necessary. The existing law is uncertain and expensive to apply and, because it was not designed for cohabitants, often gives rise to results that are unjust.

"We concluded that cohabitants should not be given the same rights as married couples and civil partners in the event of their separation and instead recommended a new scheme of financial remedies. Only those couples who had a child together or who lived together for a minimum period (to be set by Parliament within a suggested range of two to five years) would be eligible to apply. Awards would be based solely on contributions made to the relationship. Couples who wished to do so could opt out of the scheme. Government commended the thoroughness and quality of the report.

"We note the Government's cautious response to our recommendations, and that reform will not be implemented during the current Parliament. We hope that implementation will not be delayed beyond the early days of the next Parliament, in view of the hardship and injustice caused by the current law. The prevalence of cohabitation, and of the birth of children to couples who live together, means that the need for reform of the law can only become more pressing over time."

The written ministerial statement, issued on behalf of Jonathan Djanogly MP, said:

"The Law Commission published its report on 31 July 2007 but no action was taken by the previous administration who wished to first seek research findings on the Family Law (Scotland) Act 2006. This Government has now carefully considered the recommendations of this thorough report, together with the outcomes of research on the 2006 Act. 

"The findings of the research into the Scottish legislation do not provide us with a sufficient basis for a change in the law.  Furthermore, the family justice system is in a transitional period, with major reforms already on the horizon.  We do not therefore intend to take forward the Law Commission's recommendations for reform of cohabitation law in this parliamentary term."

Elaborating on the statement, a Ministry of Justice spokesperson said:

"The Government is committed to transforming the family justice system, including greater use of mediation for married or co-habiting couples which can often be quicker, cheaper and less traumatic than going to court - especially where children are concerned. Furthermore, the family justice system is in a transitional period, with major reforms already on the horizon. We do not therefore intend to take forward the Law Commission's recommendations for reform of cohabitation law in this parliamentary term.

"It is already possible for cohabiting couples to draft wills and enter into cohabitation agreements to protect their property rights. We recognise that not all couples wish to either marry or enter into a civil partnership, however they have the option to do so if they wish to gain legal recognition of their relationship."

The Law Society says that despite the Government's decision to drop plans to give couples living together similar rights to married couples, unmarried couples can sign a cohabitation agreement which would give them stronger rights should their partner die or should the couple separate.

The Society says that cohabitation agreements which are drafted by a solicitor could potentially put cohabiting couples in a better legal position than their married counterparts should the relationship breakdown.