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Law Commission to Sort Out Law for Cohabiters

Co-habiting couples separation


The Law Commission looks set to release its formal consultation paper tomorrow on what should happen when co-habiting couples separate through either the end of a relationship, or death. Common notions of a common law spouse is not something recognised in law and many couples find that at the end of a relationship the division of worldly goods, often procured during the relationship, is an ever increasing source of dispute.


Co-habiting couples separation legal advice

Head of family law at national law firm Irwin Mitchell Martin Loxley said The law is currently a mess in so far as cohabitants are concerned and to achieve fairness on the ending of long term relationships, can be difficult: at best requiring an imaginative approach, and sometimes multiple applications; and at worst can be impossible. That the consultation is taking place is a most welcome development.

Mr Loxley continued The difficulty is that the decision of a couple to cohabit without getting married is a conscious one. Had the parties intended the same consequences as marriage, they have that option. Many people still think that ultimately the court will sort it out, or will ensure fairness - many relying on notions of common law spouse - which is something not recognised in law.

The consultation paper is expected to suggest that similar rights could be given to cohabitants as those currently available to married couples, but only after both parties have lived together a considerable period of time. It is also likely to explore possible changes to the current rules on intestacy, the taxation of estates, and possibly extending to how pension benefits might be paid in the event of the death of such a long term partner, as currently such relationships have little or no recognition.


Co-habiting couples separation solicitor

Mr Loxley suggests If such changes to the law were to be made they would be far reaching given the increasing number of couples who chose to cohabit outside of marriage. The church will no doubt have much to say about the changes under discussion.

At one end of the range of possibilities would be the option to confer on cohabitants in prescribed circumstances the same rights as those now enjoyed by same sex couple who chose to register their relationship “ namely to put them in the same position as if they were married, with the financial remedies that can follow any later ending of the relationship.

This inevitably leads to a discussion of whether any change should be elective - requiring positive action on the part of the cohabitants during the relationship if the remedies on the ending of it are to be available; or whether any regime proposed should be imposed.

It is a thorny issue as the former may leave those most in need of a remedy without one, where the latter potentially imposes on all, where some may not wish it.

The law relating to same sex couple is elective, and outside the registered relationship same sex couple are currently in the same position as heterosexual cohabitants.

The recent House of Lords judgement in the case of Mr and Mrs McFarlane saw, for the first time, the courts compensate a wife who stayed at home to look after the family thereby diminishing her own earning power, leaving the husband to enjoy one of the fruits of that relationship, his earning capability built up over the course of the marriage. Could this exercise see the law move toward such notion of compensation for those who make similar and often joint decisions outside of marriage?

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