Options rejected by the Law Commission
The Law Commission considered, and rejected three main options for reform, which will be looked at in turn. Firstly, the Law Commission decided against applying the Matrimonial Causes Act 1973 (the MCA 1973) to cohabitants for two reasons: reluctance to treat parties who had never married as if they had and because the MCA 1973 is itself under judicial attack. Secondly, the Law Commission rejected amending Schedule 1 of the Children Act 1989 this would be outside of its remit and would not help childless cohabitants. The Law Commission preferred taking steps to introduce remedies that would complement the relief currently available under the Children Act 1989. Thirdly, the Law Commission considered whether reform should be left to the judges to develop the general law of trusts and estoppel. This approach was rejected as it is Parliament’s role to make judgments of social policy and not for the judges.
Lord Lester of Herne Hill’s Private Members’ Bill
Lord Lester, in partnership with Resolution, introduced the Cohabitation Bill for its first reading in the House of Lords in December 2008; the Bill had its second reading in March 2009. A consultation paper - Reforming the law for people who live together: A consultation paper (2008) - was issued and included two main options for reform. The first almost identically mirrored the Law Commission’s proposals and foresaw a scheme based on addressing any economic imbalance resulting from the cohabiting relationship, whilst the second has been described as, “a more discretionary scheme, similar in form - if not identical in substance - to the Matrimonial Causes Act 1973”. It is somewhat surprising that Lord Lester chose the second option, in spite of the extensive research carried out, and the comprehensive report produced, by the Law Commission. The Bill defines cohabitants as “any two people (whether of the same sex or the opposite sex) who live together as a couple”. With regard to eligibility, the parties must either be the legal parents of a minor child (or have a joint residence order in respect of a child) or have lived together for a continuous period of at least 2 years. The Bill also envisages an opt-out scheme, therefore in this regard - and with respect to the eligibility requirements - the Bill generally reflects the Law Commission’s proposals. However, the Bill proposes that the court can make a financial settlement order if it is just and equitable to do so, having regard to all the circumstances; this differs greatly from the Law Commission’s suggestion of ‘structured discretion’. The Bill also proposes that the degree of a commitment within a cohabiting relationship should be tested rather than simply assumed, as is the case with the Law Commission’s proposals. The Bill is unsatisfactory and pays too little attention to the suggestions of the Law Commission. Instead of fulfilling its purpose by mitigating potential financial hardship for cohabitants, the Bill may perpetuate such hardship.This unwelcome consequence is evidenced by the fact that, under the Bill, any financial contributions made to the purchase price of a property that is registered in the sole name of one of the parties would be just one of the factors to take into account. This is in contrast to the Law Commission’s proposals, which would allow financial contributions to the purchase price to constitute a retained benefit that the court would be directed to reverse. Indeed, a cohabitant in this situation may be in a better position under the general law of property as he would be entitled to a share of a property on a resulting trust. The Bill affords an untenable degree of discretion to the court, therefore certainty and a body of coherent principles that the law currently lacks would be perpetuated, in the unhappy event that the provisions of the Bill were translated into statute For these reasons, it is submitted that the Bill does not represent an adequate or desirable solution to the problems that the current law faces with regard to financial provision for cohabitants on separation.
The approach of other jurisdictions
The approach of other European and Commonwealth countries to financial provision for cohabitants on separation is considerably more progressive and far-reaching than the proposals made by the Law Commission. Moreover, a significant number of countries have had some form of legislation in place for several years. The approach of some countries has been to develop the idea of a civil union whereby the law recognises defacto partnerships between unmarried persons of the same or different sex and accords such civil unions protection from a financial perspective upon separation. In New Zealand, the Civil Union Act has been in place since 2004 and extends certain rights and obligations to cohabitants. The Netherlands introduced registered partnerships in 1998 and, despite the fact that the driving force behind this was to benefit same sex couples, statistics show that between 1998 and 2001, one third of registered partnerships were entered into by heterosexual couples. Arguably, the greatest development of the civil union concept has occurred in France. In 1999, the French government introduced the pacte civil de solidarite (PACS) which has proved to be a popular alternative to marriage amongst cohabitating couples. It confers fewer rights and imposes fewer responsibilities than marriage and has become socially acceptable in France. Hughes, David and Jacklin have expressed strong support for the use of PACS in the UK and praise the fact that “France has opted for a tiered system of unions which formally reflect the different levels of commitment of the parties and which result in different packages of rights and obligations”. However, the Law Commission made no reference to PACS in its report, not even to discount the role that PACS or the concept of civil union could play as a means to regulate cohabiting relationships.
Scotland has recently enacted legislation that enables the court, on the breakdown of a cohabiting relationship, to require payment of a capital sum to the applicant where the respondent has derived an economic advantage from the applicant’s contributions. The new Scottish regime is very similar in substance to the proposals made by the Law Commission and it is likely that the English government will carefully monitor the emerging jurisprudence in Scotland as part of its investigation into the most appropriate regime for England and Wales. It is worth noting that the Scottish system is less restrictive than the Law Commission’s approach in one respect, namely the absence of a minimum duration requirement for as a ground for eligibility.
Align with rights of married couples?
It is important that any reform should seek to hit a lower threshold with regard to rights and obligations than that of marriage and be less onerous than the financial provisions for ancillary relief upon divorce. In spite of the decrease in marriage rates, marriage is still considered as a hallowed tradition in this country that should be protected. Any move to give cohabiting couples the same rights and obligations as married couples would meet with public outcry and is unlikely to be passed through Parliament. The social reasons for declining to align cohabitation with marriage are persuasive but the legal ones are significant too. There is not a present need to create a replacement to marriage. The fact that the parties have not entered into the commitment of marriage should be respected by the law, and a lower level of jurisdiction by the court and State itself should be in place. Many reports have concluded that marriage is better for individuals in terms of health benefits, as well as statistically being the best environment in which to raise children. The role of marriage should be preserved in society. The arguments for not aligning the law on cohabitation with marriage law are cogent. It is trite to say that the concepts are different and thus each should be covered by a corresponding level of legislation.
It is undeniable that the prevalence of cohabiting couples is increasing; recognition of social practicalities is vital to ensure that the law acts to ameliorate the unhappy situation in which many cohabitants find themselves. The current law is ill-equipped to deal with financial provision for cohabitants in a fair and just way. It is unthinkable that there is no need to legislate and that increased public awareness of the predicament of cohabitants is sufficient to resolve the problems. Swift, but not hasty, action must be taken. The proposals of the Law Commission encompass the most comprehensive suggestions made thus far and they are best-suited to England and Wales, from both a legal and social perspective. Whilst it is conceded that the Law Commission could have given greater consideration to PACS, for example, it has done an admirable job in developing its proposals. It is not sensible to expect England and Wales to be as progressive as its European and Commonwealth peers, as it traditionally lags behind them in the field of family law developments. However, it is of the greatest importance to ensure that the law is well-placed to cope with the inevitable increase in cohabitants who separate and who deserve to be protected by the law.
After the government has had a chance to assess the impact of the new Scottish legislation on cohabitation, it is anticipated that a Bill will be introduced before Parliament. Further, it is hoped that any draft legislation will, for the most part, reflect the Law Commission’s proposals. There is one criticism that can be levied on the Law Commission. It has insisted that the ground for eligibility for childless couples should consist of a minimum duration requirement. In contrast, the Scottish legislation does not demand such a requirement. The Scottish approach is to be preferred as it is perfectly feasible that a couple who have lived together for less than two years could still find themselves in a position where the help of the court is needed. Rather than operate such a restrictive threshold for eligibility, it is hoped that the government will follow Scotland’s lead and allow the courts to determine the eligibility or otherwise of applicants based on the particular circumstances of the case.
Bibliography
Law Commission Report, “Cohabitation: The financial consequences of relationship breakdown”, Law Com No 307, 2007, Cm 7182
D. Hughes, M. David & L. Jacklin, ““Come live with me and be my love” - a consideration of the 2007 Law Commission proposals on cohabitation breakdown” [2008] Conv PL 197
R. Probert, “The Cohabitation Bill” [2009] Fam Law 150
S.Singer, “What Provisions for Unmarried Couple Should the Law Make when their Relationships Break Down” [2009] Fam Law 234
S. Bridge, “Cohabitation: Why Legislative Reform is Necessary” [2007] Fam Law 911
S. Bridge, “Financial Relief for Cohabitants: How the Law Commission’s Scheme Would Work” [2007] Fam Law 998
The proportion of married couple families fell from 76 per cent in 1996 to 71 per cent in 2006 - D. Hughes, M. David & L. Jacklin, ““Come live with me and be my love” - a consideration of the 2007 Law Commission proposals on cohabitation breakdown” [2008] Conv PL 197
S.Singer, “What Provisions for Unmarried Couple Should the Law Make when their Relationships Break Down” [2009] Fam Law 234
S. Bridge, “Cohabitation: Why Legislative Reform is Necessary” [2007] Fam Law 911
Law Commission Report, “Cohabitation: The financial consequences of relationship breakdown”, Law Com No 307, 2007, Cm 7182 para 2.15.
For a useful summary of the Law Commission’s proposals, see S. Bridge, “Financial Relief for Cohabitants: How the Law Commission’s Scheme Would Work” [2007] Fam Law 998
The Law Commission decided not to stipulate what the minimum duration should be but stated that it would be no less than two years, but not more than five.
Save in the case of continuing child care costs that are needed to allow the applicant to go out to work.
supra, note 4
11 R. Probert, “The Cohabitation Bill” [2009] Fam Law 150
For example, Belgium, Denmark, Sweden.
Family Law (Scotland) Act 2006