Cohabitation and the Civil Partnership Bill 2009: Concerns as to Scope
I just wanted to follow up on Máiréad’s excellent post here on the cohabition provisions of the Civil Partnership Bill 2009. As Máiréad notes the inclusion of some (albeit very limited) protections for people within cohabiting relationships that are not either marriage or civil partnerships is symbolically at least an important step forward. Essentially, these protections are applicable at the point at which the relationship breaks down, and they are useful from a property law perspective. In essence, these are rights to apply for various orders such as property adjustment orders to recognise the various contributions of parties within the relationship to the welfare of that relationship. However, I would have some concerns about the scope of these protections.
As Máiréad notes, these protections are available only to “qualifying cohabitants”, i.e. people who have cohabited for 3 years or, where there are children being parented by the cohabitants, for 2 years. Where a couple falls outside of these qualifications then these provisions will not apply to that relationship. This would leave unmarried and un-civilly-partnered couples who want to make some kind of a claim relating to their shared homes in a position of having to rely on the Presumed Resulting Trust (also known as a Purchase Money Resulting Trust). This kind of a trust recognises only financial contributions to the purchase of the property as giving rise to ownership rights in equity. Thus, other forms of contribution (such as, for example, work within the home) would not give rise to these kinds of equitable rights and people who had contributed in that way towards the relationship and the home shared by the couple with have little or no meaningful recourse.
The Bill will also allow for cohabitation agreements to have a legal status and, of course, couples who might not be ‘qualifying’ within the definition of the Bill could have a cohabitation agreement drawn up that would be binding. This is certainly a welcome development and ought to be recommended to parties entering into a cohabiting agreement where the property to be shared is not in their shared ownership. Whether or not people will, realistically, avail themselves of such an opportunity is another question. This is particularly so given the pervasiveness of the myth of ‘common law marriage’, which does not exist in law but appears to have a prominent status in the popular imagination. It will, therefore, be important for people to take legal advice in order to protect themselves where they want to enter into a cohabiting arrangement and do not want to (or can not, for whatever reason) become married or enter into a civil partnership. I must admit that I am not convinced that people are likely to enter into such an agreement in most cases, especially where the individual partners may not have substantial assets to protect. However, we will have to wait and see.