In a statement by the Justice Minster on 6 September 2011 the decision was made by the government not to go ahead for the time being with proposed reforms of cohabitation law.

The Law Commission has responded with visible disappointment at this decision and have stated that they hope implementation will not be delayed beyond the early days of the next parliament in view of the hardship and injustice caused by the current law.

The fact that cohabitation and the birth of children to couples living together is prevalent the need for reform of the law can only become more and more important over time.

In its 2007 report the Law Commission recommended that financial remedies should be available to cohabitants on separation provided certain eligibility criteria were met.

It is proposed that couples would be eligible if they had a child together or had lived together for a minimum period and suggested a range between two and five years.

The existing law is uncertain and because it was not designed for cohabitants this often gave rise to results that were unjust.

As many cohabitants discover to their surprise and often to their cost, living together does not in itself found an interest in the shared home.

When a cohabitation relationship breaks down there is no question of the court having power to make orders in relation to property on the same flexible basis as if the parties were married to one another and claiming financial relief in divorce proceedings.

Former cohabitants are entirely reliant on the principles of land and trust law to determine any dispute as to the ownership of the property.

The only exception is if a couple had a clear agreement to marry or had formerly been engaged provided in this case that an application is made within three years of the end of the engagement.

Cohabitants can enter into a Cohabitation Agreement which can provide a degree of clarity as to what the parties intended which may carry some evidential weight should the matter have to be litigated. Until the law changes, however, there is still no guarantee that they are enforceable. Watch this space.

If you require any further advice or assistance please contact Ros Plumb or a member of the Litigation team at Wortley Byers on 01277 268349 or rplumb@wortleybyers.co.uk.

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