Cohabitation Law Reform

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In recent decades, the traditional idea of the family has changed significantly, evidenced by the steep decrease in the marriage rate in England and Wales.  Different social circumstances and attitudes have contrived to make cohabitation a much more acceptable and prevalent way of life for thousands of people.  The 2001 consensus revealed there were 2 million cohabiting couples in England and Wales, an increase of 67 per cent from the 1991 figure.  The fact that cohabitation is becoming increasingly more popular necessitates an appropriate and timely response from the law to regulate this new tradition. The government has recognised that the current law is insufficient to embrace the new trend of cohabitation, leading the Law Commission to conduct research over a two year period that culminated in an extensive report published in 2007.  The report sets out the myriad of issues facing the legislators with regard to cohabitation and suggests options for reform.

The need for reform

There are a multitude of reasons why the law on cohabitation needs to be reformed.  Although the fact that the numbers of cohabitants is increasing, as the Law Commission acknowledges, this is not a sufficient reason in itself to justify a change in the law.  Currently, childless cohabitants must have recourse to the general law of property and trusts, whilst cohabitants with children can utilise Schedule 1 of the Children Act 1989 in order to make a financial claim for the material products of the relationship.  Academic commentators have noted that “the range of property law principles and approaches available produce an unnecessarily expensive and cumbersome process for the often distressed law client”.  The current law has been described as complex, uncertain and likely to give rise to unfair outcomes.  It does not take adequate account of the economic consequences of contributions made by the parties, particularly non-financial contributions such as one partner giving up work to raise a child.  Further, the Law Commission expressed dissatisfaction with the role of constructive trusts as a remedy for cohabiting couples who wish to separate.  The two main criticisms in the 2007 report were that constructive trusts cannot accommodate contingent intentions and that, due to the restrictive nature of constructive trusts, the court is unable to substitute its views of what is fair, but must adhere to the intentions of the parties.  On a more general note, one of the overarching aims of legislation to regulate financial provision for cohabitants on separation is to protect the vulnerable who are often unaware of the lack of protection and operate under a misguided notion that the law will look upon their relationship as a common law marriage.

Possible options for reform

The Law Commission

The Law Commission has emphasised that the scheme it proposes would afford less discretion to the courts than the ancillary relief provisions on divorce, in order to ensure an acceptable level of predictability and certainty.  The Law Commission proposed two grounds for eligibility for cohabiting couples: the fact that they have children together or that they meet a minimum duration requirement.  An eligible applicant would have to prove that, as a result of a qualifying contribution made by the applicant, at the point of separation either the respondent had a retained benefit or the applicant had an economic disadvantage.  The fact that the law has traditionally, but unacceptably, refused to take into account non-financial contributions is addressed here as contributions such as caring for the parties’ children or other family members can be included under the ‘qualifying contribution’ category.  Similarly, an ‘economic disadvantage’ can encompass lost future earnings and the future cost of paid childcare.  The scheme would also require the court to have regard to discretionary factors including the welfare of any child of both parties; the financial needs and obligations of the parties and the conduct of each party.  The range of orders available to the court would include lump sum payments, property transfer orders, property settlements and orders for sale and pension sharing orders.  However, it would not be able to make periodical payment orders and in this way, the Law Commission achieves its aim of ensuring that there is as clean a break as possible between the parties.

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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 ...

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