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Family Law Specialist Duncan Ranton on Cohabitation Law in relation to the case of Swift

Laurie Swift’s plight highlights again the urgent need for reform to protect Cohabitants. The law in this area in England and Wales is acknowledged as being unsatisfactory.  

Government figures put the number of people Cohabiting in England and Wales at over four million. Many believe they have legal rights because they have lived together, especially if the relationship is a long one: a right to share property they have bought, a right to seek financial support, etc. Public consciousness feeds and sustains the myth of the “Common Law” marriage.

However, there is not now, nor has there even been, such a creature in English Law. The reality for the millions affected is they have far fewer rights than people who are married or who have formed a Civil Partnership. Their property claims, if they exist at all, must be shoe-horned into obscure Trust Law principles. A former cohabitant has no claims for maintenance or alimony (although maintenance can be claimed on behalf of Children).  

The Fatal Accidents Act 1976 acknowledges that some cohabitants should be able to claim in the event of a wrongful death. However, the definition of “Cohabitation” it chooses is a relationship that has lasted for at least two years.

A cohabitant for whom inadequate provision has been made on death might be able claim against his or her partner’s estate. Such claims are made under the Inheritance (Provision for Family and Dependents) Act 1975. This Act borrows in part from the wrongful death definition of Cohabitation (as having lasted for at least two years). The law in this area is a little more sophisticated at least: a partner might also be able to claim, even if the relationship is less than two years old, if he or she were financially reliant on the deceased.  

But is there any justification for this two-year rule to decide whether a relationship is or is not Cohabitation? I believe not, and that the approach is arbitrary and indefensible. It is out of step with other areas of Family Law that have been reformed recently. For example, the Adoption legislation (passed in 2002) defines Cohabitation as, “two people (whether of differing sexes or the same sex), living as partners in an enduring family relationship”. So, the focus is not on quantity (longevity), but quality. The duration of the relationship is but one aspect of examining whether a particular couple’s Cohabitation is “enduring”. The law dealing with orders to protect people from Domestic Violence or Harassment (passed in 1996) and Surrogacy (passed in 2008) is similarly focussed on relationship quality, rather than duration, when deciding whether a couple are Cohabitants.

This examination of the character of a couple’s relationship, rather than how long it has lasted, is good enough in Adoption and Surrogacy cases. Such decisions are at least as important as what happens when Cohabitation ends through Separation or death.  

The urgent need for reform in this area is well-recognised. This need informed the Law Commission’s report, “Cohabitation:  the financial consequences of relationship breakdown”, in 2007. The Commission recommended the introduction of rules that would compensate Cohabitants for the economic advantages and disadvantages resulting from their relationships when they ended on death or separation. The current government announced in September 2011 it was shelving reform of Cohabitants’ rights, claiming that research into Scottish Cohabitation legislation did “not provide … a sufficient basis for change in the law”.  

Laurie’s case is timely, in terms of raising public perception about the continuing vulnerability of Cohabitants, given the government’s lack of appetite for protecting them. On 4 July, the Supreme Court gave Judgment in a Cohabitation case from Scotland – Gow –v- Grant [2012] UKSC 29. Scotland introduced a law protecting Cohabitants in 2006, and Gow dealt with the application of that law.

Although about Scottish law, this case resonates in England and Wales. Lady Hale, in giving Judgment, took the opportunity to refer to the unsatisfactory situation south of the border. The Scottish law did not include a provision that defined Cohabitation by reference to a qualifying period. Far from this producing a flood of claims, the Judge noted the Scottish experience was that relatively few cases involved short relationships or disputes about whether a couple were Cohabitants. She observed, “As the [Scottish] researchers comment, ‘The Act has undoubtedly achieved a lot for Scottish Cohabitants and their Children.’  English and Welsh Cohabitants and their Children deserve no less.”

Laurie Swift deserves no less. Her son deserves no less. That Cohabitants in Scotland have had for some years a safety net that recognises and protects their relationships, whilst those in England and Wales are denied it, is wholly shameful.