Until death do us part? It might make a difference…

Whilst the Government is tinkering with the marriage/civil partnership laws it also seems like common sense for the Government to listen to the voices of family lawyers and take urgent action to resolve the inequalities for those cohabiting together in a relationship, whatever form that takes.

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 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 made 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 about what rights they have and expert 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 have seen cases increase substantially involving cohabiting couples. 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 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.

Interestingly the Government has taken on board the recommendations of the Law Commission to review the 1975 Act and is proposing the Inheritance (Cohabitation) Act to be made into law. 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 goes on to say that the law, “must strive to reflect the needs and expectations of modern families”. It is often reported that divorce for married couples is akin emotionally to death and likewise it will be for those cohabiting. Why should families be treated so differently depending on the reason for separation i.e. in life or on death?

As a final point it is interesting to note that in the case of Gow v Grant [2012] 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”.

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