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Is there a political appetite for a Cohabitation Act?

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Common law myth.

One of the key findings of the Families and Households Survey 2015 is that the fastest growing family type in the UK is the cohabiting couple. This now accounts for 3.2 million families.

Many of these families will have children and one of the couple (still most often the female) may well stop working for several years to raise them. Far too many people still believe in the urban myth of “common law marriage” but the facts are that there is no such thing. You may have been in a relationship for over 20 years and worked hard to raise the family and run the home but if your partner is the sole owner of the family home and ends the relationship, he or she can walk away without taking any responsibility for you, even demanding that you leave the house straight away. The fact that you may have no money, little or no work experience and no pension will afford you no protection. Similar difficulties are encountered when one of the couple dies without making a Will as a cohabiting partner is simply not recognised in the rules that govern what happens to your property if you die without making a Will.

The Cohabitation Bill had its first reading in June 2015. It sets out to deal with the fact that our society is changing and reasonable protections should be in place. However, the second reading is yet to be scheduled and this has a feel of déjà vu as this is not the first time we have reached this stage. Successive governments of all political colours have shied away from following through on this. It remains to be seen whether the current Conservative Government will be able to see that such a Bill is not anti-marriage in any way but is a necessity, given the significant changes to our society and the unintended social injustice that prevails.  

What’s in the Cohabitation Bill?

Unsurprisingly, the bill doesn’t look to put in place the same level of protection as afforded by marriage but a key aim is to protect those that have made an economic sacrifice that has benefitted the family or his/her partner.

  • After you have lived together for more than 2 years, if either one of you has received an economic benefit from living together or suffered an economic disadvantage (such as a giving up work to raise the children) the court can make a financial settlement order.
  • Financial Settlement Orders include the same type of orders  you would might see after a divorce,  eg payments of lump sums, transfers or sale of property, pension shares etc.
  • You can opt out of such an agreement if you want to but you will have to do this when you start living together.
  • “Qualifying Cohabitants” will be included in the group of people who benefit when someone dies without leaving a Will and they can make a court application against the estate of someone they have been living with if they are not included in a Will.

These sort of provisions are already in place in Scotland and it must surely be time to recognise the anomaly in social justice that the absence of such provisions perpetuates?   Let’s hope this government is brave enough to pass the Cohabitation Act.

Kate Brooks
Divorce & family law solicitor, Market Harborough

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