Rather like no-fault divorce, campaigners have long been calling for the introduction of basic property rights for cohabitees, to prevent the economic hardship suffered by many cohabitees after their relationship breaks down.
In the case of no-fault divorce those campaigners got their wish in 2022. But campaigners for cohabitees’ rights are still waiting.
But they may not have to wait much longer.
In its election manifesto last year the Labour Party pledged to strengthen the rights and protections of women in cohabiting relationships. And now the government has confirmed it will consult on the issue this year.
When asked by the House of Commons justice select committee for a timetable on reform, Lord Ponsonby of Shulbrede, the minister in charge of family justice, marriage and divorce, said that a formal consultation will be issued this year ‘to build public consensus on what cohabitation reform should look like’.
It had previously been thought that the reform of the law on cohabitees’ rights would have to wait until existing work on marriage and divorce law had concluded, but Lord Ponsonby explained that this will not be the case.
All of which begs two questions: what might the reform of the law look like, and when will it happen?
What might the reform look like?
Of course, we will have to wait until the consultation is launched to find out what exactly the government has in mind.
However, the matter has previously been given governmental consideration.
Back in 2007 the Law Commission published a report setting out recommendations for reform of the law. The recommendations were not taken up by the government, but they are still a useful indication of what any reform of the law might look like.
The first important thing to note is that, contrary to what some opponents of reform may say, it has never been the intention of campaigners for reform that cohabitees should be given the same rights as married couples.
And indeed the Law Commission’s recommendations followed that thinking.
The Commission also did not recommend that all cohabitants should be able to obtain financial relief in the event of separation. Instead, they recommended a scheme whereby a remedy should only be available where:
1. The couple had had a child together, or had lived together for a specified number of years (they suggested between two and five years); and
2. The couple had not agreed to opt out of the scheme; and
3. The party applying for relief had made qualifying contributions to the relationship, giving rise to certain enduring consequences at the point of separation. The applicant would have to show that the respondent retained a benefit, or that the applicant had a continuing economic disadvantage, as a result of contributions made to the relationship, and the value of any award would depend on the extent of the retained benefit or continuing economic disadvantage.
As will be seen, quite different from the rights of a married person on divorce.
When will the reform happen?
Whilst it may be true that we might see the law reformed rather sooner than expected, it is still the case that reform is some way off.
Firstly of course we will have to wait until the consultation is launched. The consultation will then allow time for interested parties to respond to it. Then the government will have to consider the responses, before formulating any draft legislation, which will then have to make its way through parliament.
All of which could of take many months. And even when any new legislation is enacted we will have to wait for it to come into force.
But at least it now seems that this important reform, which could be so vital to so many people (there are now over 3.6 million cohabiting couples in England and Wales) may finally be going to happen, whatever form it will take.
