Family lawyers have welcomed the government’s recently published consultation, A fairer end to relationships. It details long-overdue plans to reshape the law on relationship breakdown, bringing together proposals for cohabitation rights on separation and on death with reform of financial remedies on divorce.
At its core is a recognition that the law has not kept pace with modern family life, particularly for the 3.5 million cohabiting couples and their children, who remain largely unprotected on separation and death. The government also recognises the need to preserve the unique status of marriage, with the proposals aiming to ‘strike an important balance between tradition and modernity’.
As groups such as Resolution begin work on responding, here are the key topics.
Rights for cohabitants on separation
The government proposes a scheme of rights and responsibilities for eligible cohabiting couples, those in committed romantic relationships, who have lived together for three years (no minimum period if they share a child). There would be a checklist of factors to determine an ‘enduring family relationship’ – for example, evidence of a shared household, financial interdependence, responsibility for children, a sexual relationship, stability and public recognition.
While it would be possible under the proposals to bring largely the same claims as married couples (save for maintenance, which would be rare), the basis on which they would be awarded would be much narrower. Each partner would retain what they legally own, while claims would be needs-based and assessed more restrictively than for spouses. This reflects a balancing exercise, providing protection against hardship while preserving the distinct status of marriage.
If both partners agree, they can opt out of the default statutory framework by entering into an agreement that would need to comply with certain statutory safeguards: contractual validity (eg no undue influence); execution as a deed; material financial disclosure and independent financial advice. Given the focus on victims of domestic abuse, all too often trapped in relationships they cannot afford to leave, it will be important to consider the impact of duress on the validity of the opt-out agreement (while also recognising that for many couples, autonomy is important and one cannot set the opt-out bar too high for them).
The consultation does not address some points, such as transitional arrangements and treatment of those in existing relationships. This will be for the bill stage. Also not covered is the proposed status of religious marriages and their treatment in the suggested framework.
Rights for cohabitants on death
Cohabiting partners currently have no automatic entitlement on intestacy, long felt to be a lacuna. The government proposes, sensibly, to extend intestacy rights to qualifying cohabitants and seeks views on minimum periods of cohabitation for qualification (five years without children, two years with – mooted by the Law Commission in 2011). Eligible cohabitants would have the same priority as spouses to apply for a grant of letters of administration. The government also proposes removing the two-year cohabitation requirement for Inheritance Act claims if the couple have children.
These measures seek to narrow the gap between the reality of modern relationships and their legal consequences on death, while remaining mindful of the potential impact on blended families. It has been observed that this raises the prospect of more claims against estates by children after the intestacy rules have benefited an unmarried partner.
The consultation is silent on inheritance tax, meaning the spousal exemption would not be available. Everything above the £325,000 threshold would be taxed at 40% if passing to a cohabitant under new intestacy rules.
Finances on divorce
Although Resolution sees this area as less pressing, we welcome the suggested moves to codify existing law and to consider topics such as the impact of conduct on financial outcomes and the enforcement of qualifying nuptial agreements.
The model proposed would include a statutory objective to achieve a fair outcome via the established principles of needs and sharing. Equal sharing of matrimonial property would be the starting point, with departure only to meet needs, enabling parties to transition to independence as far as resources allow. Matrimonial and non-matrimonial property would be defined in statute (informed by the Supreme Court judgment in Standish). Current remedies under the Matrimonial Causes Act 1973 would remain unchanged.
This shift addresses concerns about the perceived unpredictability of financial outcomes. While judicial discretion would remain, the aim is a more transparent and consistently applied system, giving (often unrepresented) couples clearer expectations of outcome and encouraging early settlement.
What lies ahead?
The 10-week consultation period is short and reflects a desire to get on with a bill (to be planned ‘when parliamentary time allows’). The fact that the proposals are directive in nature and underpinned by extensive work, leading to three Law Commission reports between 2007 and 2014, gives a helpful head start. While familiar objections have been raised, including the perceived risk of devaluing marriage, the suggestion that those who seek protection should simply marry, or concern that the provisions will encourage cohabiting couples to split up, such arguments are addressed in the paper and miss the fundamental point – that the government is consulting on the shape reform should take, not on whether reform is needed.
We can no longer ignore the realities of how modern families are arranged or keep telling them, ‘just get married’. Now that we finally have a proper shot at reform, we owe it to victim-survivors of domestic abuse not to let this chance slip through our fingers.
Jo Edwards, partner and head of family at central London firm Forsters, is chair of Resolution’s Family Law Reform Committee
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