Government to consider financial rights for cohabitees

It appears that reform of the law to give basic financial rights to cohabitees at the end of their relationship is at last getting closer.

The minister in charge of family justice, marriage and divorce, has said that a formal consultation on the subject will be issued this year. Previously it had been expected that cohabitation reform would have to wait wait until existing work on marriage and divorce law have concluded.

The minister indicated that the consultation would aim ‘to build public consensus on what cohabitation reform should look like’.

So what will it look like?

Of course, we don’t yet know, but there is considerable support for reform based upon proposals which were made by the Law Commission back in 2007, but never taken up by the government.

The Law Commission did not think that all cohabitants should be able to obtain financial relief in the event of separation. Instead, they recommended that a remedy should only be available where:

1. The couple satisfied certain eligibility requirements – the Commission suggested that any scheme should only to cohabitants who had had a child together, or who had lived together for a specified number of years;

2. The couple had not agreed to disapply the scheme – in other words, the couple could agree to ‘opt out’ of the scheme, subject to necessary protections; and

3. The party applying for a remedy had made ‘qualifying contributions’ to the relationship (for example where they had a continuing economic disadvantage or the other party had retained a benefit), giving rise to certain enduring consequences at the point of separation – the value of any award would depend upon the extent of the continuing economic disadvantage or the retained benefit.

It is important to note that the Law Commission was not proposing that cohabitees be given the same rights as married couples. Indeed, no one who supports reform is suggesting that.

All that the proponents of reform are seeking is a basic ‘safety net’ for those who currently find themselves at a significant economic disadvantage at the end of a cohabiting relationship.

Take, for example, the case of a woman who has a long cohabiting relationship with a man, living in a home owned by him. The couple have children and the woman gives up her career to look after them. The relationship eventually breaks down, after the children have grown up. In such a case the woman might have no way to seek financial support from the man. She could even be left homeless.

The current government clearly recognises the plight of a woman in such a position, having pledged in its election manifesto to “strengthen the rights and protections available to women in co-habiting couples” (although any new law would surely operate to protect men as well as women).

We will obviously have to wait and see exactly what form any reform proposals will take.

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