Living Together
The number of cohabiting couples in the UK is expected to rise from 2 million to 3.8 million by 2030. Six out of ten cohabiting couples believe they have the same rights as married people on separation. In fact the present law provides very little protection for couples who live together.
Resolution has been campaigning for the introduction of a new law to protect cohabiting couples since 2000. In 2007 The Law Commission published proposals for reforming the law relating to cohabitation. Resolution is urging the government to introduce new legislation without delay,"
The Cohabitation Bill received its first reading in the House of Lords on 11 December 2008 Cohabitants could be entitled to to make family provision claims
Law Commission issues consultation on intestacy and family provision claims
The Law Commission has published a consultation outlining potential reforms to the law of intestacy and provision for families and dependants on death. The 200 page consultation document sets out several proposed reforms including the possible inclusion of cohabitants within the intestacy rules, saying that
“the current law causes hardship for cohabitants and is out of line with public opinion, as well as giving rise to unnecessary litigation under the 1975 Act which could be avoided if cohabitants had an entitlement on intestacy.”
The Commission is then proposing that, among other things
"that for the purposes of the intestacy rules a cohabitant should be defined as a person who, immediately before the death of the deceased:
(1) was living with the deceased as a couple in a joint household; and
(2) was neither married to nor a civil partner of the deceased."
Where the couple have a child during cohabitation:
"(1) there should be no minimum duration requirement for an entitlement on intestacy for the surviving cohabitant; and
(2) the surviving cohabitant should be entitled under the intestacy rules to the same entitlement as a spouse."
Where there are no children,
"the surviving cohabitant should be entitled under the intestacy rules to the same entitlement as a spouse, if the cohabitation had continued for at least five years before the death."
And where the period of cohabitation is between 2 and 5 years
"the surviving cohabitant should be entitled under the intestacy rules to 50% of the amount which a spouse would have received from the estate."
Similarly under the Inheritance (Provision for Family and Dependants) Act 1975,
"if the surviving cohabitant and the deceased are by law together the parents of a child, there should be no minimum duration requirement for the survivor to be entitled to apply under section 1(1)(ba) of the Inheritance (Provision for Family and Dependants) Act 1975, provided that the cohabitation was continuing at the date of death."
They are also proposing that under the 1975 Act
"in order to qualify for an award under the Inheritance (Provision for Family and Dependants) Act 1975 as a cohabitant the applicant must have been living as a couple in a joint household with the deceased immediately before the death."
And that any
“reasonable financial provision” for a cohabitant is defined as such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive, whether or not that provision is required for the applicant’s maintenance.
The consultation closes on 28 February 2010 and the consultation paper, along with summaries and other supporting documents such as a spreadsheet that allows the user assess what a surviving spouse might receive under reformed rules, are all available on the Law Commission website
Promoting and Enforcing Contact
On 8 December 2008 the Children and Adoption Act 2006 (Commencement No 3) Order 2008 came into force. It contains various provisions intended to give Courts new powers to promote contact and enforce contact Orders made under section 8 of the Children Act 1989
The underlying aim of the new legislation is to encourage compliance with contact orders and to enforce those orders where there is no voluntary compliance. It gives courts powers to order ‘contact activities’ where parents are repeatedly unable to agree contact arrangements themselves.
To achieve these ends the Act has added two new important concepts to the powers of the Court – a Contact Activities Direction or Condition and an Enforcement Order.
The primary aim of these provisions is to encourage and educate parents in order to facilitate contact rather than to penalise parents for non-compliance.
A Court now has power to direct a party to take part in an activity which may promote contact. In the event that a Court does not make a contact order at a hearing, it may still make a contact activity direction. If a contact Order is made the Court is empowered to make participation in such an activity a condition of contact.
An appropriate contact activity would be a programme, class and counselling or guidance sessions that may assist with establishing maintaining or improving contact with a child. Other possible contact activities are programmes designed to address a person’s violent behaviour in order to facilitate contact, and information sessions about arrangements for contact including sessions on mediation. However a contact activity direction cannot be used to require medication or medical or psychiatric treatment.
Contact activity directions apply not only to the child but to the individual who is the subject of the direction or condition. Such an order cannot be directed to a child unless the individual is the parent of the child concerned in the application
The Court must ensure before it makes the contact activity direction or condition that the activity is appropriate in the circumstances of the case; that the provider of the activity concerned is suitable to provide and; and that the activity is available in a place which it is reasonable to expect the person in question to travel.
The Court must specify the activity and the person providing the activity
The Court’s powers in cases involving a breach of a contact order are increased by adding a power to make an enforcement order imposing an unpaid work requirement and/or a power to order one person to pay compensation to another for financial loss caused by the breach. These powers are in addition to the Court’s powers as to contempt and the Court’s ability to alter the residence and contact arrangements concerning a child
Family law group Resolution have warned that these new legal powers to help courts maintain contact between separated parents and their children are unlikely to help those going through family breakdown without a properly funded national network of contact support services,
Fathers’ groups and Judges have often complained at the lack of effective powers available to the courts to deal with parents who block contact without good reason. The new Act will enable Judges to order that parents attend ‘contact activities’ such as a meeting to discuss the possible benefits of mediation, or a parenting information group workshop or a domestic abuse prevention programme.
Chris Goulden, Chair of Resolution’s Children Committee said: “The principles behind these new powers are laudable but they are unlikely to bring about any meaningful improvement unless the new services are up and running, properly funded and readily available for the Courts to refer families to.
“At the present moment there is a disturbing lack of clarity as to what activities will be available, where, when and who will pay for them.”
Whilst the cost of attending some contact activities looks set to be covered for those on legal aid, other families on low incomes will have to foot the bill themselves and pay fees which could range from £200 - £2500, unless they can prove that payment would cause them financial hardship. People on working tax credits or disability benefits are often not eligible for legal aid and these costs would come at a time when families are already having to make significant financial adjustments as a result of the family break-up.
“It is vital that issues around contact are resolved as speedily as possible. The introduction of ‘means testing’ adds a layer of bureaucracy and delay to a process which already takes too long,” said Chris Goulden.
“Access to help and advice for parents struggling to handle the impact of family breakdown must not become another post-code lottery.”
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