Cohabiting couples still vulnerable despite new rights

The Law Commission says cohabiting couples need more legal protection but has stopped short of recommending the kind of rights provided by marriage. Catherine Wenborn of Andersons solicitors in Nottingham explains what the changes mean and why they could still leave thousands of cohabitees feeling vulnerable.

Family lawyers often come across cases of clear injustice because cohabiting couples have very little legal protection as the law now stands.

It could be that someone lives with a partner for 20 years yet ends up homeless and penniless when the relationship breaks up. Or they may find they lose out because their partner dies without making a will and the estate they helped to pay for and expected to inherit is instead divided up between family members they hardly know.

With more than 2 million cohabiting couples in England and Wales the number of people likely to suffer injustice in some way is enormous. The Law Commission’s recommendations are limited but they do go some way towards redressing the balance.

The main benefit is that couples who split up would be entitled to financial settlements which reflect their contribution to the relationship. The partner making a claim would have to prove that they had made a “qualifying contribution” and they would have to show that this put them at a long term disadvantage or gave their former partner a financial benefit.

For example, if a woman sacrificed her career to stay at home to look after the children leaving her partner free to progress in his job then she would be at a disadvantage and should be compensated for that. Similarly, if a man helped pay for a mortgage in his partner’s name then that would give her a clear advantage and that should be reflected in the financial agreement.

Courts would be able to order one of the partners to pay lump sums or sell their home to provide the other with a fair settlement. This is an improvement but as the Commission points out, it is very different to the situation of married couples who divorce because it only relates to contributions made during the relationship.

With marriage there is an automatic presumption that both partners are equal irrespective of their differing contributions. Unless there are special circumstances, assets and wealth are divided equally when a couple divorce. With co-habiting couples there is no such presumption no matter how long they live together.

Co-habiting partners won’t be entitled to maintenance payments, regardless of their needs. The only time such support might be provided is to pay for childcare. This means some women in particular could still be left in a vulnerable position.

To qualify for these limited new rights a couple would have to have children together or live together for a minimum period. It’s recommended that this should be between two and five years.

The proposals are now being considered by the Ministry of Justice which will decide whether or not they should be implemented.

Catherine Wenborn is head of the Family Department and can be contacted on 0115 988 6717.

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