Calls for new laws on cohabitation

A unanimous ruling earlier this month by the UK Supreme Court in a Scottish cohabitation case has given clear lessons for how the law in England and Wales should be reformed, according to Lady Hale, one of the judges ruling on the case.

Lady Hale has supported the judgment in the Gow V Grant case and she has commented on the disparity between legislation which was introduced in Scotland five years ago and the legal position in England and Wales. Lady Hale emphasised research, stating: “The Act has undoubtedly achieved a lot for Scottish cohabitants and their children,” adding: “English and Welsh cohabitants and children deserve no less.”

The court went on to say that the “main lesson” from the case was that a remedy such as that provided in Scotland “is both practicable and fair.”

On the other hand when individuals make a claim when they stop cohabiting, they cannot expect to receive as much as a spouse would on the breakdown of a marriage but they could expect any gains and losses resulting from the relationship to be compensated.

Resolution, of which Dovetail are members, represents 6,500 family law professionals in England and Wales, said that although one in six couples currently live together without being married, huge numbers face distress if they separate. This is because of out-of-date laws surrounding cohabitation, combined with popular misconceptions that still exist.

Steve Kirwan, Chair of Resolution’s Cohabitation Committee said: “The current situation for people who live together in England and Wales, more often than not creates injustice and hardship, and our current law fails to reflect the way people are choosing to live their lives. Sadly, children, who were not party to their parents’ decision not to marry, can often be affected.

“Despite the ‘common law’ marriage myth, it is possible to live together with someone for decades and even to have children together, and then simply walk away without taking any responsibility for a former partner’s welfare. That is simply wrong.”

Resolution are calling for new laws in England and Wales, for cohabiting couples who have lived together for more than five years – or for less time in cases of exceptional hardship. For couples who have children, the law would provide protection regardless of how long they have lived together.

These couples would have an automatic right to apply for certain financial orders if they separate. If a couple wished to opt out of this provision, they could do so by way of a written agreement. Such a law would prevent injustice by allowing the courts to recognise a cohabiting relationship and decide on an outcome that is fair and reasonable.

Mr Kirwan added: “Now that the Scottish legislation has been in place for several years, and the lessons from research are available, we urge the government to revisit this matter, so that cohabitants in England and Wales can receive similar legal protection to their counterparts north of the border.”

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