Guest Contribution: Hayward on Cohabitation in England Wales-Learning from Ireland?
We are delighted to feature this guest contribution from Andrew Hayward of Durham University Law School. You can find out more about Andrew on the Guest Contributors page. Unfortunately we do not have a photograph of Andrew but he has supplied us with the photograph on the left of an unhappy–presumably cohabiting–couple.
For family lawyers in England and Wales, cohabitation has long been the hot topic for debate. Various reform proposals have been produced here that, if implemented, could have provided some amelioration to the current legal provision offered to cohabitants on relationship breakdown. Optimists were hoping that the proposals in the Law Commission’s Report Cohabitation: Financial Consequences of Relationship Breakdown in 2007 would have been introduced to remedy the current unsatisfactory position by providing qualifying cohabitants an array of remedies on the breakdown of their relationship. No draft bill was inserted and due to the politically contentious nature of the provisions it was unsurprising that the Government chose to await findings from a similar scheme in Scotland by way of the Family Law (Scotland) Act 2006 (see the ministerial statement here). Since then two Private Members bills have been introduced, both with unlikely chances of success. So after reading the thought provoking posts from Fiona and Mairead on the cohabitation aspects of the Irish Civil Partnership Bill 2009, it appears that, yet again, England and Wales will be lagging behind.
As Mairead has outlined a central feature of the Irish cohabitation provisions is the concept of ‘qualified cohabitant’. This concept focuses on living together as a couple in an intimate relationship and utilises a statutory checklist to help determine this status. Once satisfied, the Irish provisions require three years cohabitation without a child or two years with a child to open up a broad discretionary system of financial relief orders such as property adjustment, pension sharing and compensatory maintenance. However, it must be shown that it would be ‘just and equitable’ to grant relief and again another broad discretionary checklist is employed focussing extensively, although not exclusively, on economic dependency.
The approach of the stalled Law Commission Report in England and Wales was to recognise (as eligible for financial relief) cohabitants living as a couple in a joint household but with no statutory checklist for defining them. Once ‘cohabitant’ status was satisfied, the parties needed to have had a child together with no restriction as to time or show that they had cohabited for a period of two to five years. The cohabitation duration provision proved particularly controversial with the media often misconstruing it to mean that after two years a cohabitant would automatically open up an ancillary relief jurisdiction normally reserved for married couples or civil partners. Likewise the fact that the presence of a child rendered eligibility from day one was tempered by the need to show a joint household, thus transient and non-cohabiting relationships would fall at the first hurdle. The applicant would then need to prove economic disadvantage based on their qualifying contributions (both financial and non-financial sufficed) which has in turn generated for the respondent a retained benefit. Ultimately when deciding whether to make property adjustment orders, lump sum payments or pension sharing the court would have regard to discretionary factors in order to remedy this imbalance. Periodical payments are not available under this scheme.
This brief comparison indicates that the Irish scheme arguably has more of a typical ancillary relief discretion about it, particularly through the use of the rather nebulous ‘just and equitable’ terminology. However it was not intended to create a new status for cohabitants in Ireland or seek to undermine the constitutionally privileged status of marriage. The Law Commission for England and Wales also explicitly stated that no attempt would be made to simply transpose the discretionary, yet structured, ancillary relief provisions under the Matrimonial Causes Act 1973 onto cohabitants. That said, it can be questioned how far the traditional concepts of need, compensation and equal sharing would have informed the adjudication of these cohabitation claims. Cross fertilisation of ideas between married or civil partner claims and cohabitants would be inevitable, particularly owing to the intrinsic nature of disputes on the breakdown of intimate relationships. As there has been some criticism of the overly structured, mathematical nature of the Law Commission scheme, it’s quite illustrative to note that subsequent Private Members bills have leaned towards the conferral of more discretion akin to current ancillary relief provisions.
Both schemes involve default coverage and thus legally aware cohabitants can opt-out thereby disapplying the provisions. Echoing the points made by Fiona and Mairead on this, it is unlikely that large swathes of cohabitants would do this in the same way that it is unlikely many would seek to private order through cohabitation contracts. The latter has been endorsed as a possible mechanism in both jurisdictions but their execution is fundamentally linked to the need for cohabitants to understand their current legal position in comparison to married couples. This may be improving with various information campaigns being introduced highlighting the pervasive myths and discrepancies (see the Living Together and OnePlusOne Campaigns). For England and Wales a glimmer of hope for private ordering and its effect on party autonomy, may reside in the Law Commission’s new project on Marital Property Agreements. If the Law Commission proposes binding prenuptial agreements, which is personally highly likely, it may instigate greater contractualisation within the domestic arena.
Although redress for cohabitants is imminent in Ireland and may be on the horizon for England and Wales, some thought needs to be given to those that fail the eligibility requirements. Interestingly those that would have fallen outside of the scheme in England and Wales would have relied on the relatively restrictive Common Intention Constructive Trust that is used to demarcate beneficial ownership rather that than Presumed Intention Resulting Trust more prevalent in Ireland. Whilst these implied trusts have different idiosyncratic twists depending on the jurisdiction, resort to them is unfortunate owing to their failure to effectively recognise non-financial contributions. The eligibility qualifications in both schemes are thus an important gateway into remedies. What is most intriguing is that we can legitimately question the political and societal views towards relationships that fall outside the cohabitation provisions such as platonic home-sharers, carers or those that are excluded by virtue of prohibited degrees i.e. two siblings prohibited from marrying or registering a civil partnership. These relationships will certainly become the next hot topic for family lawyers.
With the recent legislative developments, it is certainly an exciting moment for cohabitation research. Naturally time is required for the Irish provisions to come into force but comparative research certainly will be highly informative. Through the findings of a similar scheme in Scotland, coupled with the introduction of the Irish Civil Partnership Bill provisions, it is hoped that England and Wales will gain valuable insight into the operational impact of cohabitation provisions and this may help place cohabitation firmly back onto the political agenda.