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No rights for cohabitees, but reform of financial provision on divorce to be considered

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James Harbottle
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No rights for cohabitees, but reform of financial provision on divorce to be considered

Ian Walker Director/Solicitor/Mediator /Arbitrator Law Society Children Panel and Mediation Accredited
Ian Walker Director/Solicitor/Mediator /Arbitrator Law Society Children Panel and Mediation Accredited

We wrote here in August that the House of Commons Women and Equalities Committee had published a report recommending that the law be reformed to give cohabitees the right to seek financial relief from their partners upon relationship breakdown.

The Government’s response to the report has now been published, and the news isn’t positive.

Cohabitation law reform

 rejected

As we explained in our previous post, the report recommended that the Government implement a scheme recommended by the Law Commission back in 2007, whereby cohabitees who had had a child together or had lived together for a specified number of years be given certain basic rights to share the pluses and minuses of the relationship.

Importantly, the scheme would give cohabitees significantly fewer rights than someone who had been married or in a civil partnership.

No rights for cohabitees, but reform of financial provision on divorce to be considered

Cohabitees would also be able to opt-out of the scheme if they wished.

The Government has rejected the Committee’s recommendation, although it has not indicated that it is against giving rights to cohabitees.

Amongst other things (see below), the Government says that the Law Commission’s recommendation is so old that the matter would have to be looked at afresh, rather than implemented now.

Commenting upon the Government’s response the Chair of the Committee Caroline Nokes MP said: “It is deeply disappointing that the Government has closed off the possibility of better legal protections for cohabiting partners for the foreseeable future.”

Common law marriage myth

The report also recommended that the Government launch a public information campaign to highlight the legal distinctions between marriage, civil partnership, and choosing to live as cohabiting partners, in an effort to counter the commonly-held myth of the common law marriage.

As we explained in our previous post, believing the myth can have significant consequences, with many cohabitees falsely thinking that they have legal protections, which turn out to be non-existent.

The Government has partially accepted this recommendation.

Agreeing that it is important that people understand the legal distinctions between getting married, forming a civil partnership and living together as cohabitants, the Government points out that the Department for Education’s statutory guidance on relationships education includes the need for schools to ensure that pupils should be aware of what marriage is, including its legal status.

In view of this, the Government does not consider that a national campaign is necessary, but has committed to take further action to raise awareness of the issue, including reviewing the information on the Government website and considering whether better signposting for further information and support could be made available.

Reform of financial provision on divorce?Welcome change to Capital Gains Tax rules on separation

Perhaps the most interesting part of the Government’s response was not in fact related to cohabiting couples, but to married couples, or couples in a civil partnership.

The Government said that “existing work underway on the law of marriage and divorce … must conclude before considering any change to the law in respect of the rights of cohabitants on relationship breakdown.” It went on: “In particular, the Government must focus on its commitment to conduct a review of the law of financial provision on divorce and is currently undertaking work as to how this review should best take place.”

So a review of the law as to what financial claims can be made on divorce/civil partnership dissolution, and how those claims are decided, is in the pipeline.

Of course, we do not yet know when this review will take place, let alone what recommendations it may make, or whether the Government will accept those recommendations.

But the fact that the existing laws, which have largely remained the same for the last fifty years, are to be reviewed is extremely important, and could obviously have major implications for divorcing couples in the future.