Cohabitation Rights Bill has its first reading
On Thursday 13 February Lord Marks’ Cohabitation Rights Bill had its first reading in the House of Lords. If passed, the bill would, amongst other things, provide basic financial protections for former cohabitants.
The current law in England and Wales gives little protection to unmarried couples who separate. There is no ability to claim for needs in terms of capital, pension or income. The division of assets on relationship breakdown falls to looking at how the assets are owned, who has contributed to a particular asset (most likely the family home) and whether any interests have arisen in the assets following that contribution. Very complex and complicated law for people to understand.
The Cohabitation Rights Bill would aim to change this and has two main operative parts: one dealing with financial protection for former cohabitants, and the other making provision about the property of deceased persons survived by a cohabitant.
The bill provides that a former cohabitant (defined essentially as someone who has had a child with the other cohabitant, or who has lived with them for at least three years) may apply to a court for a ‘financial settlement order’. A financial settlement order may require the payment of a lump sum, the transfer of property, a property settlement, the sale of property or pension sharing.
The application for an order must be made before the end of the period of 24 months starting with the date on which the former cohabitants ceased living together as a couple unless the applicant satisfies the court that exceptional circumstances would justify a late application being made.
Under the bill the court would be able to make an order if it is satisfied either that the respondent has ‘retained a benefit’, or that the applicant has an ‘economic disadvantage’, as a result of ‘qualifying contributions’ the applicant has made; and that having regard to various discretionary factors (income, needs etc. – much like those that the court must consider on a financial remedies application on divorce), the court considers that it is just and equitable to make an order.
The other crucial thing is that the Cohabitation Rights Bill allows the parties to agree in writing to opt out of its provisions. However, this does not prevent an application for an order being made – the court may vary or revoke the opt-out agreement if it determines that the agreement is “manifestly unfair” to the applicant.
Unfortunately as this is a private members bill it is unlikely to pass as there is a lot of opposition to it and no political backing for changing the law in this way. Still this may spark further debate and protest over whether unmarried couples should be given similar rights to those who are married when a relationship breaks down.
Amanda Erskine is a solicitor in the Family department at Barker Gotelee Solicitors.