At present there is no specific law dealing with cohabiting couples, unlike in Scotland where they have introduced legislation which reportedly works well. In the face of the Law Commission recommendations, family lawyers are calling out for changes and there’s a longstanding campaign made by Resolution that the law should be overhauled.
Cohabitation disputes often involve families who have children and I think everyone would say that children should come first and be protected. But what happens in the real world? Cases become costly as they deal with very complex areas of law including trusts and claims made under Schedule 1 of the Children Act 1989. Often people cannot afford to pursue or defend a claim and some might just give up hope and agree to sell the family home, which might have been bought originally to provide a home for the couple’s children.
Unsurprisingly, most people do not know what rights they have and expert family law legal advice should be sought to establish what rights and claims could be made upon separation. Asserting these rights/claims is made even harder now in the absence of Legal Aid and the Government slashing “no win, no fee” agreements which might have helped in some cases to assist cohabitees with funding of cases.
Over the last 20 years, there has been a significant rise in the number of cohabiting couples, and family lawyers here in Manchester have seen cases involving cohabiting couples increase substantially. Estimates in 1992 were that there were 2.7million people cohabiting but by 2007 the number had increased to 4.5million – 10% of the adult population over 16. The figure continues to increase but the government still takes no action to protect cohabitees.
Well, that is partly true for those who want to make claims in respect of a cohabitee who is living. It is in some ways easier to make a claim on the death of a cohabitee under the Inheritance (Provision for Family and Dependants) Act 1975. Under the Act, claims can be made for “reasonable financial provision”. What is reasonable depends on the facts and what is reasonable to the Judge hearing the case. This is a complex area of the law and expert family law legal advice should be taken from a solicitor before making a claim as there are potential cost implications in making a claim that is not likely to succeed.
Interestingly, the government has taken on board the recommendations of the Law Commission to review the 1975 Act and the Inheritance (Cohabitation) Act 2011 which will become law when the bill is brought into force in the near future. Reports show that two thirds of people do not have a will and the Act is to be brought in to remove inequalities, protect families and children at, “times of financial and emotional vulnerability”. The Commission says that the law, “must strive to reflect the needs and expectations of modern families”.
It is often reported that divorce for married couples is emotionally akin to death, as it will be for those cohabiting. So, why should families be treated so differently depending on the reason for separation i.e. in life or upon death?
As a final point it is interesting to note that in the case of Gow v Grant  UKSC29 heard in the Supreme Court, Baroness Hale said that, “lessons should be learned in England and Wales from the practicability and fairness provided by Scottish legislation”.
How many more years will it take the Government to redress this imbalance?
About Mark: Mark Heptinstall is recognised as a leading lawyer in the Chambers Guide to the Legal Profession. He specialises in family finances including high-net worth, complex cases and is an Associate Member of ACTAPS and a Resolution trained Collaborative Lawyer.