The Cohabitation Rights Bill

Published on: August 30, 2017
Prenuptial Agreements

The Cohabitation Rights Bill is a result of The Law Commission’s report and proposals in 2007. The first reading of the Bill took place on 5 July 2017. This is a formality to start the procedure of the Bill passing through the House of Lords.

The present position

It is widely believed that when cohabiting couples separate they have similar rights to married couples – the so-called common-law marriage. In fact, this does not exist in English Law and cohabiting couples, whether opposite-sex or same-sex, are not nearly as protected as their married/civil partnered counterparts.

There are no rights on separation for a cohabitee who has given up their career to care for children. Similarly a cohabitee who has invested their savings to help their partner establish a business could be left with nothing when they separate. Where it is a married couple separating, these circumstances can be taken into account in financial proceedings under the Matrimonial Causes Act 1973.

The proposal

The purpose of the Bill is to “to provide certain protections for persons who live together as a couple or have lived together as a couple as cohabitants; to make provision about the property of deceased persons who are survived by a cohabitant; and for connected purposes”. Broadly, the Bill defines “cohabitants” as those who have lived together as a couple for 3 years or more, or couples who have a child together. The Bill provides that:

  • Part 2 – Financial Settlement Orders

Applications for Financial Orders may be made within 2 years of the relationship ending compared with married couples where there is no time-limit following separation or divorce. Either the respondent must have retained a benefit or the applicant must have suffered an economic disadvantage as a result of the applicant’s contributions – which is not required in the case of married couples.

The court may make orders for 1) payment of a lump sum, 2) transfer of property, 3) property settlement, 4) sale of property, and 5) pension sharing. These provisions mirror the orders available to married couples with the exception that, for married couples, the court may also make an order for spousal maintenance.

A significant difference between the Bill and the existing legislation for married couples is that cohabitees may choose to opt out of the financial settlement provisions. They must take legal advice before doing so and must each sign a statement.

  • Part 3 – Insurance and Intestacy

The Bill would also ensure that a cohabitee has a presumed interest in the life of their partner for the purposes of life insurance under the Life Assurance Act 1774.

It would insert “qualifying cohabitant” into the Administration of Estates Act 1925 so that a cohabitee would have the same rights as a spouse should their partner die without a will (intestacy).

The Bill would also amend the Inheritance (Provision for Family and Dependants) Act 1975 so that a cohabitee may apply to the court where they believe that their partner’s will does not adequately provide for them, just as a spouse can at present.

Arguments for and against

The number of cohabiting couples is increasing. The myth of the common-law-marriage is widespread and so many cohabitees also believe that their financial position is protected on separation when, in fact, it is not. This results in thousands of couples who are unwittingly exposed to the risks outlined above. Supporters of the Bill argue that given the proportion of the people affected, and that this number is increasing, it is appropriate that the government intervenes to protect those who are most vulnerable – usually women who give up their careers and their children.

Opponents highlight that cohabiting couples can already obtain this protection by getting married, particularly now that this right has been extended to same-sex couples. They state that cohabiting couples have specifically chosen not to marry and that they should not therefore have marriage-like rights and obligations forced upon them by legislation. The counterargument is that if one party does not wish to marry, the other cannot force them to and so only one party may be choosing not to take on the financial protection of marriage.

Other countries already have cohabitation laws. Scotland has had legislation similar to the proposed Bill since 2006 and Ireland since 2010. In previous attempts to introduce a Cohabitation Bill, opponents had suggested it was necessary to see whether the Scottish legislation was successful. Supporters argue there is now more than 10 years of evidence from the Scottish model and that it has received a positive response from senior members of the judiciary including Deputy President of the Supreme Court, Lady Hale. Australia, Canada and New Zealand also have laws for dealing with the separation of cohabiting couples.

What happens next

The next stage is the Second Reading which involves a general debate between those for and against the Bill. There have been several previous attempts to pass Cohabitation Bills. In 2014 a similar Bill reached the Second Reading. It did not progress any further. In 2015 a Cohabitation Bill did not reach the second stage. The Second Reading for the present Bill has not yet been scheduled.

 

References taken from Daily Hansard – 12 Dec 2014


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