Re-considering the rights of cohabiting partners

The House of Commons recently released their report entitled “The rights of cohabiting partners.”

The law surrounding unmarried couples is a topic that has been heavily debated by scholars, practitioners, the Law Commission and organisations such as Resolution, for many years. A separation is an emotional experience; the stress a couple faces can be further exacerbated due to the lack of legislative transparency. The aforementioned report describes the current position as “a patchwork of legal rules spanning the law of property, trusts and contract”. This, coupled with the dispelling of the common law marriage myth, often leaves parties feeling confused as to their legal rights.

Practitioners who were consulted as part of the report highlighted how the intention of Schedule 1 of the Children Act 1989 was to ensure that children of unmarried parents were treated the same as those of married parents. However, the Family Law Bar Association opine that the problem lies not with the children of the separating parents but is instead how the parents are treated upon the breakdown of their relationship. Graeme Fraser of the Family Law Bar Association proposed that the legislative framework for unmarried couples should operate closer to how married couples are dealt with by way of the Matrimonial Causes Act 1973.

With respect to future reform, in 2007, the Law Commission proposed an “opt-out” scheme whereby unmarried couples should be able to obtain financial relief upon separation where:

  • the couple satisfied certain eligibility requirements;
  • the couple had not agreed to disapply the scheme; and,
  • the applicant had made qualifying contributions to the relationship giving rise to certain enduring consequences at the point of separation.

The abovementioned scheme has now been endorsed by the House of Commons in their recent report. Further, the report recommends that the Government implements legislation to deal with intestacy and family provision claims for cohabiting partners.

This highlights how difficult the legal redress can be for cohabiting couples and how it is vital that advice is taken from experienced family lawyers who understand all the complexities and nuances of this patchwork of laws.

Our team of highly experienced solicitors can provide advice to unmarried clients who are separating. If you should require any advice on the issues raised in this blog, please contact our office on 02920 197 203 in order to arrange an initial consultation with one of our experienced solicitors.