The reforms, set out last week in a Ministry of Justice consultation, ‘A fairer end to relationships’, would give bereaved unmarried partners automatic rights to inheritance if their partner dies intestate. Separating couples would be able to apply to court to have their financial or material ‘needs’ met, and the courts may also be given discretion to award maintenance in ‘exceptional circumstances’, possibly for a time-limited period.
To be eligible, cohabitants would need to have lived together for at least three years or share a child, and a family judge would need to be satisfied they were in an ‘enduring family relationship’. Ministers propose a two-year time limit to access the rights.
Ciara Pugh, partner at Stowe Family Law, said: ‘How those tests are defined and applied will be crucial.
‘It’s vital any structures put in place are clear, concise and easily understandable for cohabiting couples, otherwise there is a risk that the floodgates will be opened for unmarried couples who are confused or misled about their rights, only exacerbating the existing “common law spouse” issues.’
If the proposals go ahead, they will bring to fruition a long-fought campaign to win legal rights for cohabiting couples.
Law Society vice president Brett Dixon said: ‘For too long, millions of people in cohabiting relationships have not had basic financial protections.’
Jo Edwards, head of family at Forsters, said it was ‘a once-in-a-generation chance to reform family law’.
Pre- and post-nuptial agreements could be made legally binding. Osbornes Law partner Claire Andrews said these are ‘increasingly popular’ with clients.
The consultation also includes reforms to financial remedies on divorce, codifying the distinctions between matrimonial and non-matrimonial property, including pre-marital cohabitation when calculating the length of a marriage, and giving greater weight to the impact of domestic abuse when assessing finances and distributing assets.
Melanie Bataillard-Samuel, chair of Resolution, said the current law ‘often enables perpetrators of domestic abuse to continue that abuse after a relationship has ended’.
The consultation closes on 14 August.
