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Disappointment in the Government's Decision to Take a 'U' Turn on Cohabitation Legislation

I think it will have come as a surprise (and also a disappointment) to Family Law Practitioners, that the Government has decided not to bring in legislation which would have rationalised and simplified the present legal position with regard to cohabiting couples. At present this is a particularly grey and complex area of the law and, in the view of many if not all Family Law Practitioners, is one in urgent need of being addressed.

Legislation with regard to cohabiting couples in Scotland was brought in by the Scottish Parliament a few years ago and, as I understand it, our Government has been monitoring the effect of that before deciding whether to bring in legislation in England. At the present time case law has resulted in the financial rights (or the lack of them) of cohabiting couples being very different to the rights of parties who are or have been married, and it was expected that the Government would pass legislation giving fairly (but not the same) rights to cohabiting couples as those enjoyed by married couples.

There exists under the present Law a number of grey areas in relation to cohabiting couples financial rights, and the Law based on previous Court decisions can work unfairly, particularly where a couple have cohabited for a number of years.

I believe that the proposals which had been mooted included cohabiting couples acquiring property rights – and also rights to maintenance – once they had cohabited for a specified period of time, (this was anticipated to be between at least two and five years), with a possible adjustment to that period of time if there were children of the relationship. In particular those rights would have included the acquisition of an interest in the family home, even if that property was owned in the sole name of one of the cohabitee’s and the other cohabitee had made no financial contribution towards it; together with the right to make a claim for maintenance (in addition of course to existing rights in relation maintenance of any children).

Therefore the status quo remains the same. In particular the acquisition of an interest in the family home by a cohabitee can in certain cases be an extremely complicated matter including, for example, the consideration of whether a constructive trust may apply.

Obviously the benefits of having a Cohabitation Agreement is to put in place what rights each of a cohabiting couple will have in the event of their relationship breaking down. Assuming that the provisions to be included in such a Cohabitation Agreement can be agreed, then such an Agreement can be drawn up, signed and completed within a matter of a few weeks. The cost involved obviously depends on how complex the issues are, but a fairly standard Cohabitation Agreement would probably involve costs in the region of £1,000.00 - £1,200.00 plus VAT. As with Pre-nuptial Agreements it is very important that each party is legally represented, or at the very least has had the opportunity of taking independent legal advice; the Agreement must be entered into freely without any duress by one party upon the other; and each party should provide full details of their incomes, assets and liabilities which should be referred to in the Agreement.

Also, as with Pre-nuptial Agreements, the whole concept of entering into a Cohabitation Agreement, perhaps at the outset of the relationship, is a somewhat unromantic one and one which needs to be handled sensitively. As referred to above, it does of course give the couple the opportunity of defining what their rights will be in the unfortunate event of their relationship breaking down, which would be of benefit not only to themselves but for any children which they may have; and also will avoid what could amount to significant legal costs if issues do arise on the breakdown of their relationship which have to be determined by the Court.  Far better to reach a sensible and amicable agreement with regard to those issues, than for a Judge to have to determine those issues with all the consequent costs, uncertainty and probably ill-feeling which that would involve.

If you would like to find out more contact me Peter Flint on 01743 280280 or email peter.flint@lblaw.co.uk.