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There are 2.2 million couples in England and Wales who live
together and are not married. When these relationships break down,
partners do not have an automatic right to claim financial support
from ex-partners and the legal remedies that are available to them
can be confusing and uncertain.
The Law Commission advises the government on legal reform and,
in July 2007, published a report looking at the financial
consequences of relationship breakdown for co-habiting couples. The
Commission recommended a statutory scheme of financial remedies for
cohabitees.
The Commission's recommendations do not provide partners with
automatic rights to financial remedies. Any new law needs to
achieve a difficult balancing act between protecting those
individuals who enter into a long-term relationship without
understanding that there may be no financial provision for them if
the relationship breaks down and those individuals who choose not
to get married for that very reason.
who would the new laws apply to?
The Commission proposes that the laws would apply to couples who
have children together and couples who have lived together for a
set period of time. This has yet to be decided but is likely to be
between two and five years.
A partner wanting to make a claim must prove that he or she had
made a "qualifying contribution" during the course of the
relationship. Examples could be where one partner has funded the
other's training and professional development or cared for the
children. The contribution needs to lead to either an "economic
disadvantage" for the claiming partner (for example, a partner
whose employment opportunities are limited because they have full
time care of the children) or a "retained benefit" for the other
partner (for example, a partner who has been able to improve their
earning capacity because of the other's contribution).
what could they claim?
The Commission suggests that the court could order that one
partner pay the other a lump sum, that property be transferred or
sold or that pensions be shared. It seems that the court would be
trying to make good any economic disadvantage that was suffered or,
if this was not possible, would try to share any loss equally
between the couple. It is not envisaged that maintenance orders
would be made.
In making its decision, the court would consider the welfare of
any children and the needs and resources of both partners.
opting out
Couples will be able to enter into opt out agreements. The
Commission envisages that these will be standard written agreements
which will make clear that both partners intend to opt out of the
statutory provisions.
when will the new laws come into force?
The government now has to decide whether to accept the Law
Commission's recommendations. If it does, legislation will need to
go through parliament. It is envisaged that, before any legislation
comes into force, couples will be given a time period (probably of
one year) to opt out if they wish to do so.
In the meantime, and given the current uncertainty in this area
of law, we would advise all couples who live together to enter into
co-habitation agreements. These agreements regulate the way that
couples own property and other assets and can prevent unnecessary
legal arguments and costs should relationships break down in the
future.
Kate
Chesters is a solicitor in the Family team at Blake Lapthorn in
Winchester and can be contacted on 01962 844440.
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