Family Law

The Law Commission's consultation paper Cohabitation: The Financial Consequences of Relationship Breakdown" was published on 31 May 2006. The Government asked the Law Commission to examine the options for reforming the law that applies to cohabiting couples on separation and death. The consultation paper invites the public's views on the difficult issues raised to assist in making recommendations to Parliament for reform.

The consultation paper rejects the view that cohabitants should have access to the financial regime that applies on divorce. Instead, it proposes a self-standing scheme of financial remedies for certain cohabitants on separation available only in strictly limited circumstances, focussing on the financial hardship suffered by cohabitants or their children on the termination of their relationship by separation or death. The following issues are highlighted:

• 1. Whether cohabitants should have access to any remedies providing periodical payments, lump sums, or transfers of property from one party to the other when they separate.
• 2. A review of the operation of existing remedies providing capital awards (such as lump sums and property transfers) for the benefit of children under the Children Act 1989.
• 3. Whether, where a cohabitant dies without a will (intestate), the surviving partner should have automatic rights to inherit. The law currently gives surviving spouses an automatic inheritance in such circumstances. Cohabitants can normally only benefit from the estate in such cases if the courts (under the Inheritance (Provision for Family and Dependants) Act 1975) grant them a discretionary award on the basis of their needs.
• 4. A review of the Inheritance (Provision for Family and Dependants) Act 1975 as it applies to cohabitants and their children.
• 5. Whether contracts between cohabitants, setting out how they will share their property in the event of the relationship ending, should be legally enforceable, and, if so, in what circumstances.

The Law Commissioners will not consider:

• 1. Parental responsibility which has been recently considered and legislated upon in the Adoption and Children Act 2002.
• 2. Next of kin rights: the Department of Health has recently amended its policy guidance to NHS staff to extend consultation with next of kin to include unmarried partners.
• 3. Insolvency, tax and social security: the Department for Constitutional Affairs has indicated that a consideration of these issues would not address the most immediate policy needs.
• 4. Child support: any debate about the operation of the Child Support system is beyond the remit of the Law Commission.

Law Commissioners clearly believe that there should be some reform of the current law. They feel that there are strong arguments that reform should apply to cohabitants with children. Whether it should also apply to any cohabitants without children is a more difficult question, essentially of social policy on which they invite consultees' views.

A final report with recommendations for reform will be published in summer 2007. That report will not include a draft Bill. The scope of the project and further information (including details of how to respond to the consultation) are available from http://www.lawcom.gov.uk/cohabitation.htm. The consultation period runs from 31 May to 30 September 2006. Consultees must respond to the paper in the format given.

See July [2006] Fam Law for the full news article.