The number of people who are living together in a relationship, neither married nor civil partners continues to rise. Many of these people are probably completely unaware that they have few rights in the event of a break-up of their relationship and that such rights as they do have centre around any children of the relationship. It is estimated that within fifteen years, nearly a third of all households will be made up of cohabitees as opposed to married couples or civil partners.
The problems that the current legal position has left unresolved have led the Law Commission to issue a consultation document called 'Cohabitation: the Financial Consequences of Relationship Breakdown', which runs to nearly 400 pages.
According to the Law Commission, a scheme is necessary to set out the respective rights of cohabitees. In the Commission's view, these rights should be automatic, but couples should be able to 'opt out' if they so wish. Accordingly, the scheme would apply to all cohabiting couples unless they specifically elect for it not to. It would necessitate the creation of a 'cohabitation contract', which would be required to be in writing, signed and witnessed. It is possible that cohabitation contracts would be required to be made with the benefit of legal advice.
The Law Commission's proposal is that the scheme should be available to all cohabitants who have children and to those who have cohabited for two years or more, whether or not they have children.
The proposals are that the financial arrangements on the termination of the cohabitation should resemble those currently applied in divorce cases. It is also proposed that the ability to make a claim for financial provision against the estate of a deceased cohabitee should be based on the reasonable expectation of the likely settlement in the event of separation. This would only apply were one of the partners to die without making a will or with a will which made inadequate provision for the surviving partner.
At the moment, there seem to be a number of loose ends in the Law Commission's proposals, especially concerning the criteria applied in assessing the financial settlements when couples split up.
It is likely that the proposals will be debated for some time yet, so the legislation which will bring them into effect is not likely to appear before 2008 at the earliest. It is also likely to undergo many changes before it reaches the statute book.
"Until the proposals have passed into law, the position of cohabitees is best protected by having a formal written agreement, which should be made with the benefit of independent legal advice on both sides," says Karen Moores
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