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21: Is Ignorance Bliss?

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21: Is Ignorance Bliss?
Leave your thoughts John Darnton

By John Darnton

Where are we regarding co-habitation reform?

In the next few weeks much will be made in the media and on solicitors’ websites of the apparent peak in new divorce instructions following the Christmas period. Of course, many, many, people live in relationships outside of marriage and civil partnership. Their relationships may equally come under stress and strain during the holiday period and therefore this subject is not a minority interest.

Sadly the news is not especially good.

In 2007 the Law Commission recommended a statutory financial remedy for cohabitants on divorce. This would be available only to eligible cohabiting couples, either having a child together or having lived together for a period of between two and five years. Moreover couples would be able to opt out of this scheme by written agreement. Under the proposal, the applicant would have to demonstrate that either the other party to the relationship had retained a benefit or that they had a continuing economic disadvantage as a result of contributions made to the relationship. The remedy was intended to address economic and other hardship. This hardship would have to be demonstrated irrespective of the length of the relationship.

Accordingly, the proposal put forward by the Law Commission would not put separating cohabitants on the same footing as people going through the divorce process. The remedy would be much more limited but could at least provide some relief in circumstances where, at present, a person could be left in dire financial circumstances.

In March 2008, the then government announced that no action would be taken to implement the Law Commission’s recommendations until research on the cost and effectiveness of the scheme, which had then recently been implemented in Scotland, could be studied. In September 2011 the coalition government announced that, having considered the Law Commission’s recommendations and the research into the Scottish legislation, the then government did not intend to reform the law relating to cohabitation in that Parliamentary term. Basically, it was kicked into the long grass.

Attempts have been made by Lord Lester and Lord Marks to push through Bills that would attempt to address economic unfairness at the end of a relationship that had enriched one party and impoverished the other but neither has yet made its way onto the statute books.

Cohabitants therefore remain in a potentially precarious situation if their relationship breaks down. This could be a large group of people. Figures released by the Office for National Statistics reveal that between 2005 and 2015 there was an increase of 29.7% of cohabiting couple families amounting to 17% of all families in the UK. More recent statistics from the ONS indicate an increase to 3.3 million opposite sex cohabiting coupled families, with the number more than doubling over the last 20 years. On separation these individuals often have the unenviable task of trying to present arguments based on uncertain equitable principles and have no right to claim maintenance for themselves.

Resolution continues to campaign for cohabitation reform. Resolution highlights the fact that under the present law it is possible to live with somebody for many years, to have children together but then simply walk away without taking any financial responsibility for the former partner when the relationship breaks down. Resolution has called for the urgent introduction of safety net legislation providing legal protection, particularly for children and mothers left vulnerable under the existing law.

The oddity is that, potentially, a cohabitant does have a financial claim if their relationship ends on the death of their partner rather than on separation. This remedy is to be found in the Inheritance (Provision for Family and Dependants) Act 1975. That legislation is designed to provide a remedy where a person dies and their Will, or the rules of intestacy, do not make ‘reasonable financial provision’ for certain categories of individuals. Somebody in a relationship with the deceased may well be able to bring a claim if they can establish either that they were financially dependent upon the deceased or perhaps more significantly that, for a period of two years ending immediately before the date of death, they were living with the deceased in the same household and as the husband or wife of the deceased. A successful claim under the 1975 Act could result in the applicant receiving capital and/or income from the estate.

The Family team at Bircham Dyson Bell frequently advises on the breakdown of relationships outside of marriage in addition to divorce and the dissolution of civil partnerships.

23 December 2016

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