Cohabitation:
The Financial Consequences of Relationship Breakdown
The Law Commission’s
consultation paper “Cohabitation: The Financial
Consequences of Relationship Breakdown” was published
on 31 May 2006.
The Government
has asked the Law Commission to examine the options for reforming the
law that applies to cohabiting couples on separation and death. We are
publishing this consultation paper to invite the public’s views
on the difficult issues raised and so assist us in making recommendations
to Parliament for reform.
Stuart Bridge,
the Commissioner leading the project, said
"More people
live together outside marriage than ever before. The law that applies
if cohabitants separate is unacceptably complex. It often gives rise
to results that many people would consider unfair."
"We believe
that there is a strong case for introducing more suitable financial
remedies where cohabiting couples have children, and possibly in other
circumstances."
"We hope
that this consultation paper will provide a basis for discussion about
(1)whether there should be reform; (2) if so, how a new scheme of remedies
between cohabitants could be designed; and (3) to whom it should apply."
The consultation
paper rejects the view that cohabitants should have access to the financial
regime that applies on divorce. Instead, it proposes a self-standing
scheme of financial remedies for certain cohabitants on separation available
only in strictly limited circumstances. The scheme would not apply to
all cohabiting couples.
The consultation
period continues until 30 September 2006.
Key
issues
The project looks at people who are living together in relationships
bearing the hallmarks of intimacy and exclusivity, but who are not married
to each other or who have not formed a civil partnership (the status
available to same-sex couples who register their relationship).
The project concentrates
in particular on the following issues:
- Whether cohabitants
should have access to any remedies providing periodical payments,
lump sums, or transfers of property from one party to the other
when they separate.
- A review of the operation
of existing remedies providing capital awards (such as lump sums
and property transfers) for the benefit of children under the Children
Act 1989.
Scope of the project
In order to keep the
present project manageable, and to produce recommendations closely tailored
to the particular needs of this category of relationship, our work focuses
solely on cohabitants.
This project
therefore does not consider:
-
Relationships
between blood relatives or "caring" relationships.
-
"Commercial"
relationships (landlord and tenant or lodger).
-
Parental
responsibility - This has been recently considered and legislated
upon in the Adoption and Children Act 2002.
-
Next of
kin rights - The Department of Health has recently amended its policy
guidance to NHS staff to extend consultation with next of kin to
include unmarried partners.
-
Insolvency,
tax and social security - The Department for Constitutional Affairs
has indicated that a consideration of these issues would not address
the most immediate policy needs.
-
Child
support - The Child Support Act applies to all non-resident parents
of qualifying children, regardless of the nature of the relationship
between the parents (whether spouses, civil partners, cohabitants
or none of those). Any debate about the operation of the Child Support
system is beyond the remit of the Law Commission.
-
Whether,
where a cohabitant dies without a will (intestate), the surviving
partner should have automatic rights to inherit. The law currently
gives surviving spouses an automatic inheritance in such circumstances.
Cohabitants can normally only benefit from the estate in such cases
if the courts (under the Inheritance (Provision for Family and Dependants)
Act 1975) grant them a discretionary award on the basis of their
needs.
-
A review
of the Inheritance (Provision for Family and Dependants) Act 1975
as it applies to cohabitants and their children.
-
Whether
contracts between cohabitants, setting out how they will share their
property in the event of the relationship ending, should be legally
enforceable, and, if so, in what circumstances.
The scope of
this project and further information are available from http://www.lawcom.gov.uk/cohabitation.htm.
Download
the Consultation paper
Download
an overview
Men's
Aid response Q & A
Men's
Aid full response
Cheltnam
Group Response
