Sir, – John Waters makes a number of inaccurate statements about the cohabitation aspect of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (Opinion Analysis, January 13th).
Mr Waters suggests that cohabiting couples covered by the Act will be “in relationships legally indistinguishable – save in one notable respect [ie the rights of cohabiting fathers] – from marriage”. He also states that the Act contains a section “extending the main civil partnership provisions to all cohabiting couples”.
Neither of these statements is accurate. Civil partnership under the Act has similar consequences to marriage, except for different treatment in relation to children and some other more minor differences. However, the legal consequences of cohabitation are very different to those of either marriage or civil partnership.
The scheme in the Act essentially allows cohabitants, who have lived together for a specified period, to seek “redress” from each other on the ending of their relationship. A remedy is only available if the claimant can show that, as a result of the relationship or its termination, he or she has become “financially dependent” on the other cohabitant. This hurdle does not exist in relation to marriage or civil partnership and has the potential to defeat many claims. The rights of cohabitants upon the death of the other cohabiting partner are significantly less extensive than those of spouses and civil partners, and any share a cohabitant obtains in such cases is at the court’s discretion. Unlike in relation to spouses and civil partners, there is no requirement of prior written consent from the other cohabitant when the one cohabitant wants to sell or mortgage the shared home of a cohabiting couple.
In contrast to cohabitation under the 2010 Act, marriage and civil partnership have important consequences in a wide range of areas other than property disputes between the parties. For example, cohabitation is of minor significance in the area of taxation as compared with marriage or civil partnership.
On one other specific point, Mr Waters comments that “it remains unclear . . . whether the new legislation applies retroactively to couples whose relationships existed prior to January 1st, 2011, or whether the legal ‘cohabitation clock’ started ticking with the new law’s enactment”. However, section 206 of the Act addresses this point explicitly. It provides that a period of cohabitation before the Act can be counted towards the qualifying period of five years (or two years if there are dependent children) but that a claim for redress can only be made if the relationship ends after the Act came into force.
It can certainly be argued that the cohabitation provisions of the 2010 Act were misconceived. However, in considering the issues, it is important to understand that the rights and obligations which the Act imposes on cohabitants, although significant, clearly fall short of those associated with marriage or civil partnership. – Yours, etc,