By Gill Rivers, Collyer Bristow, London


Breaking the cohabit

It is a well-established principle of English law that you cannot protect a person against a bad bargain. Why, then, has the Law Commission sought to encase in statute one of the most commonly propounded myths in family law - there is no such thing as a common law spouse (well not yet anyway)? The reluctant spouse syndrome may now be addressed in statute and, if implemented, will surely strike the fear of God into those who do not want to be bound by the legal responsibilities imposed on marriage.



The Law Commission first consulted two years ago on whether couples who are not married but living together should have more legal rights. A consultation paper was published in May 2006. The process appeared, in part at least, to be a reaction to the advent of the Civil Partnership Act 2004, which came into force in December 2005. This Act now affords same-sex couples the opportunity to enter into a written agreement the effect of which, on dissolution of that relationship, would regulate the ownership of property and issues relating to children.



The Law Commission has now published its final recommendations advising the government on legal reform between cohabiting couples. The project has examined the financial consequences of the termination of cohabiting relationships by separation or death. Other aspects of the law in this context - such as tax, social security, insolvency, next-of-kin rights and child support - were excluded from the terms of reference. The report relates only to cohabiting couples and has not been extended to other home-sharers, such as relatives, carers and dependants, and commercial relationships.



It claims that the current law for dealing with property disputes is unclear and complicated. The commission also rejected claims that the reforms would undermine marriage. Stuart Bridge, the commissioner responsible for the project, said: 'We think our scheme strikes the right balance between the need to alleviate hardship and the need to protect couples` freedom of choice.'



Surely, it should be a matter of personal choice as to whether couples avail themselves of the protection afforded by the cloak of marriage? Legal provisions already exist for couples who embark on joint ownership of property to regulate their affairs by way of a declaration of trust. Schedule 1 of the Children Act 1989 gives the courts power to make certain financial orders for the benefit of children, whatever the nature of their parents' relationship. It is accepted that these couples would need to take steps to obtain advice on protective measures at the outset of their relationship. Is that really such a hardship? If individuals choose not to obtain advice, is that a matter the government needs to regulate? Yes, says Resolution, which has for several years attempted to bring about a change in the law in this area.



The Church of England is said to be 'sympathetic' to law reform for couples where children are involved. It, however, stressed that marriage is central to the stability of society.



Eligibility requirements

The proposals will not affect all cohabitants. The recommendations are that a remedy should only be available where the couple satisfies certain eligibility requirements. This would limit the scheme to those couples who had a child together or lived together for a 'minimum duration'. The report does not, however, make a recommendation as to what the minimum period should be, but suggests that a period between two and five years would be appropriate.



Disapplying the scheme

Consideration had been given to an opting-in provision requiring couples to sign up to the proposed new law. This was deemed to be a potentially ineffective course affording cohabiting couples no greater protection than is available to them at the moment. What is recommended is a 'default' position, the scheme being available to all 'eligible' cohabitants. If, however, couples do not want to be bound by the new regime, they would have to take active steps to ensure the legislation did not apply to them. It is envisaged this will be done by parties entering into an opt-out agreement, leaving them free to make their own financial arrangements.



Qualifying contributions

It will also be necessary for couples to prove that they had made contributions to the relationship which had given rise to certain enduring consequences at the point of separation. Therefore, simply living together, for however long, would not give rise to any presumed entitlement to share in any pool of property. The scheme will not grant remedies simply on a needs basis on separation, whether by making orders for maintenance or otherwise.



The executive summary to the report concluded: 'In broad terms, the scheme would seek to ensure that the pluses and minuses of the relationship were fairly shared between the couple. The applicant would have to show that the respondent retained a benefit, or that the applicant had a continuing economic disadvantage, as a result of contributions made to the relationship. The value of any award would depend on the extent of the retained benefit or continuing economic disadvantage. The court would have discretion to grant such financial relief as might be appropriate to deal with these matters and in doing so would be required to give first consideration to the welfare of any dependent children.'



It is believed that an application of the above approach and principles will address the hardship and other economic unfairness that can arise when a cohabiting relationship ends. The proposed new law is said to offer a more comprehensive response to the economic impact of contributions made by the parties and so to needs that arise as a consequence. Making adequate provision for adults, it is suggested, will afford a greater leeway to the courts on any application under schedule 1 of the Children Act for the benefit of the parties' children.



Although concern surrounds the adoption of legislation to regulate cohabiting couples in that it may harm the institution of marriage, research has shown that in countries where legislation in this area has already been adopted, there is no evidence of a relationship between marriage rates and the introduction of remedies between cohabitants.