Divorce and Family Law

Reforming Cohabitation Rights

The Law Commission, the law review body, has recently unveiled its proposals to offer improved remedies to cohabitees whose relationship breaks down. The report has been requested partly as a response to worrying statistics which reveal that over half of cohabitants believe that after they have lived together for a certain amount of time, they will benefit from the same rights as married couples.

Whilst this may be the case when applying for a mortgage or calculating child support, the same cannot be said for the division of property when a cohabiting relationship breaks down. In addition to this, the number of people in cohabiting relationships has increased dramatically and the Government are responding to a rapidly evolving society.

Currently cohabiting couples are disadvantaged in the following ways:
 

Any reform will require a nuanced approach due to the varying nature of cohabiting relationships; some relationships will last only a few years while others may be decades long and may have involved a greater degree of commitment than many marriages. The Law Commission’s report, “Cohabitation: The Financial Consequences of Relationship Breakdown” was published on 31st July 2007 and has received wide support. The report recommends that financial remedies should only be made available where the cohabiting couple are able to fulfil certain eligibility requirements such as a minimum duration of the relationship. The proposals also allow for a couple to agree to “opt out” of the scheme which has been favoured over an “opt in” scheme in recognition of the realities of a cohabiting relationships which most frequently begin with one party moving in with the other who has already bought the property.

Whilst cohabitation agreements are widely encouraged by solicitors, few people elect to benefit from the certainty they can bring. It is highly unlikely that at the outset of the relationship, home ownership will be discussed and either party will have given any thought to the division of property should the relationship come to an end. The case of Cox v Jones where both parties were barristers has shown that the situation can be so difficult to approach that even legal professionals can neglect to anticipate the need for any prior agreement.

The current position adopted by the courts towards cohabitation is that it is effectively a commercial transaction. Consequently, there is an inability to exercise discretion in the way in which assets are divided on the break down of a relationship. The division of property will usually be proportional to the contribution each party made to the initial purchase. This has been highlighted by the recent case of Stack v Dowden which involved a couple who had been cohabiting for almost twenty years and had four children together. Despite this high degree of commitment, the House of Lords retained their approach of dividing the assets in proportion to the amount initially invested with Ms Dowden being awarded a sixty five per cent share. It is widely believed that if the couple had been married, there would have been a far greater probability of the assets being distributed equally.

It is hoped that the Law Commission’s proposals, if adopted by the Government, will bring an end to the unfairness which can often result at the end of a cohabiting relationship. A prominent example of this is the case of Burns v Burns in which Mrs Burns, who had never married Mr Burns despite taking his name, was left with nothing at the end of a nineteen year relationship with two children.

The Government’s new approach towards cohabiting couples echoes developments in society over the last few decades. In England and Wales, one in six couples are now in cohabiting relationships. While there is currently no timetable for the reforming legislation, it is clear that the Government will ultimately have to respond to what has been described by Lord Justice Carnwath as “a witch's brew, into which various esoteric ingredients have been stirred over the years”.

It should be highlighted that although the deficiencies in the current law have been acknowledged, the proposals of the Law Commission still have a lengthy wait to endure before they can be implemented. The Law Commission first began work on the current project in 1994. The length of time it has taken to bring the project this far shows the complexity of the issue. Leading Politicians are yet to decide how far the law should go to protect cohabitees and the legislation may be hindered over widespread concerns of undermining the institution of marriage.

It should be emphasised that in the current climate, even cohabitees who feel that they are in the most stable of relationships should try to protect themselves from the uncertainty surrounding cohabitation by entering into a Cohabitation Agreement.

See our main article on Cohabitation Agreements which summarises the law as it stands at present. There is also a summary of the Law Commission report on our blog

To discuss your own situation or to make an appointment, contact one of the lawyers in the Matrimonial department, Lisa Bolgar Smith or Eleanor Hoare on 020 7242 7000 or use the Contact Request Form.

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