So…the Government's law reform advisers’ most recent proposal is to interfere with the status of unmarried couples. The suggestion that couples who split up after living together for as little as two years - or less, if they have children together - should be able to make financial claims against each other is ill-conceived, will be impractical to enforce and could lead to some people becoming permanently moving co-habiting professional bounty hunters!
The most fundamental change suggested by the Law Commission is that couples living together would automatically enter into a contractual relationship unless they make a conscious decision to ‘Opt out’. Discussing 'Opting out', at the very same time as embarking on/or being in a committed relationship, will be a very difficult topic for many couples to broach, without immediate mistrust arising. The Law Commission's proposals could well result in a move away from not only marriage/civil partnership, but any form of emotional commitment, making relationships legislative and business-like arrangements. Certainly anyone thinking of allowing a partner to move in with them, without the legal ties of a marriage/civil partnership, should review the potential legal and financial implications in the light of this proposed new legislation now, rather than wait for the passage of time and find themselves in an embarrassing position of having the discussion when the relationship is more settled.
Co-habiting couples have never been recognised as a legal entity. There is currently no formal contract preceding such an arrangement, (as is the case with marriage and civil partnerships), and yet it is proposed at a stroke that unless couples opt out of the proposals, they are caught by them. It surely must be a logically stronger case if the converse applied with ‘Opting in’ to the proposals being more appropriate? That would mean that both parties have to be proactive, would have to have a detailed conversation armed with all of the facts and values of assets, would need to understand the consequences, and if appropriate consult independent professional advice before an agreement is reached as to the decision to ‘Opt in’. Wouldn’t this result in a longer lasting and better operational result? Surely any reasonable person in a committed relationship which has reached the co-habiting stage would be able to approach the subject and to put a plan in place without seeming awkward and mistrustful.
With more couples considering co-habiting as an alternative to marriage/civil partnership, particularly in the light of recent high settlement divorces, perhaps the law reform advisers’ time would be better spent in recognising the legality of pre-nuptial agreements, regardless of whether the couple is married or not? The courts are guided by the existence of such documents but are not bound by them. They need to take acceptance of pre-nuptial agreements (and in the case of cohabitation, pre-co-partnership agreements) and formally acknowledged them as having precedence in the event of a subsequent parting of the ways. This would save time in court and reduce the dreadful emotional stress associated with the present detailed examination of assets and their evaluation.
These proposed new laws do very little to encourage committed relationships, and seem to fly in the face of the Government's stated policy on marriage and co-habiting. When you marry/enter into a civil partnership, you have to actively enter into a contract as set out by law, in a ceremony overseen by an appointed representative, in the presence of independent witnesses, to a point where you sign a binding contract. With cohabitation, as the existing proposals are drafted, if you do not ‘Opt out’ you are in! The Government, it seems, is seeking to rush in protection in circumstances which many consider are outside of their direct control. However, if these drafts were to proceed to an eventual Act they will certainly provide a substantial increase in fees for the legal profession in this field and probably flood the Courts with hearing requests. More importantly, they would open up the very real possibility of a brand new entrepreneur - the ‘Professional Co-habitor’, who, rather than work for a living, moves from partner to partner, reaping rich rewards by breaking the relationship after the appropriate length of time.
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