Tuesday, July 31, 2007

New Rights for Cohabitees?

The Law Commission has recommended that the Government introduce legislation to give legal rights to cohabitees on the breakdown of their relationship. The suggestions are:

1. It will apply to those who have cohabited for 2 years of more and to those who have children.

2. People can opt out of it if they so choose.

3. It will be based on "qualifying contributions"and one will have to show that either one has lost out or one's ex partner has gained.

4. The remedies available will extend to making a pension share and can include a forced sale of the property.

What do I think:

WHAT'S BAD ABOUT IT?

1. The opt out clause.

There is a similar procedure under the Landlord and Tenant Act which removes the rights of compensation which the statute provides to the tenant if the landlord were to reclaim the building. It is standard practice for landlords to insist that tenants sign the opt out before they grant a lease. No doubt it will become standard practice for the cohabitee with financial clout to insist that the cohabitee with financial disadvantage signs the opt out before they move in.

2. The terms "qualifying contribution" and "enduring consequences".

These are subject to interpretation and sound ridiculous. There should be a straightforward definition of exactly what a "qualifying contribution" is otherwise they will simply encourage litigation. I don't think £100.00 is enough for a "qualifying contribution" but maybe you do type scenario. What is The Law Commission's definition of a "qualifying contribution"?

"any contribution arising from the cohabiting relationship which is made to the parties' shared lives or to the welfare of members of their families. Contributions are not limited to financial contributions and include future contributions, in particular the care of the parties' children following separation."

Clear as mud then!!!!!!!

3. Will the economically disadvantaged be entitled to legal aid?

If so, and one has no assets, one will have nothing to lose by litigating for one's "qualifying contribution" courtesy of the State. The Law Commission talks about serious cost consequences if one litigates needlessly or disproportionately, but that's no threat if you have nothing.

WHAT'S GOOD ABOUT IT?

1. The enforced sharing of childcare costs.

I have always thought it a nonsense that one can make a claim under the Children Act for school fees (which by definition are for the relatively financially advantaged) but not for childcare costs. In effect the State picks up the tab via the Tax Credits system.

Making the other parent share the childcare costs is a good idea and should be extended to all parents via The Children Act and not just to ex cohabitees.

Anyway perusing the whole report was as interesting as reading my local parking committee's implementation and definition of survey requirements agenda for car parking facilities in and around the village. To put this in context, I rarely drive, I use my bike and I love reading about Family Law.

See the following report in THE TIMES for more details on The Law Commission report and the Hamble news for an update on the car parking.

4 comments:

Mr Pineapples said...

I agree - the opt out clause is ridiculous. Those individuals who shack up together will be adverse to buying into anything that smacks of legality. The opt out will be a a part of the philosophy of the arrangement: no rules, let it all hang out, let's see what happens....no lawyers getting involved.

Dontcha agree?

Orhan Kahn said...

I doubt we will see something like this in our Island Home of Oz anytime soon. Don't know why but it just seems like such a complex issue and concept.

Lynne Bastow said...

Mr Pineapples - I do

Orhan - It's not complex, it's just that cute English trait we have of making ourselves feel clever by complicating things!

Orhan Kahn said...

Touche!