Cohabitation Rights Bill [HL] (HL Bill 97)

Part 1 Introductory

1 Overview

(1)This Act establishes a framework of rights and responsibilities for cohabitants
5with a view to providing basic protections—

(a)in the event of their ceasing to live together as a couple for a reason
other than death;

(b)in the event of the death of one of them; and

(c)for the purpose of enabling the life of either of them to be insured by or
10for the benefit of the other or for the benefit of a relevant child.

(2)The protections under this Act apply to “cohabitants” (within the meaning of
section 2) and “former cohabitants” (within the meaning of section 3).

2 “Cohabitant”

(1)For the purposes of this Act, references to the cohabitants in a relationship are
15to any two people (whether of the same sex or the opposite sex) who—

(a)live together as a couple, and

(b)meet the first and second conditions specified in subsections (2) and (3).

(2)The first condition is that any of the following apply to the two people (“A” and
“B”) who live together as a couple—

(a)A and B are each treated in law as being mother, father or parent of the
same minor child;

(b)there is in force in respect of a minor child either a joint residence order
in favour of A and B or a child arrangements order stipulating
5arrangements by which a minor child is to live, spend time or otherwise
have contact with both A and B;

(c)A and B are the natural parents of a child en ventre sa mere at the date
when A and B cease to live together as a couple (whether or not that
child is subsequently born alive); or

(d)10A and B have lived together as a couple for a continuous period of three
years or more.

(3)The second condition is that A and B—

(a)are neither married to each other nor civil partners of each other, and

(b)are not within prohibited degrees of relationship in relation to each
15other.

(4)For the purposes of subsection (2)(d), in determining the length of the
continuous period during which two people have lived together as a couple—

(a) any period of the relationship that fell before the commencement date
is to be taken into account, but

(b)20any one or more periods (not exceeding six months in all) during which
the parties ceased living together as a couple is to be disregarded.

(5)The prohibited degrees of relationship which are referred to in subsection
(3)(b) are set out in section 5.

3 “Former cohabitant”

25Any reference in this Act to “former cohabitants”—

(a)is to any two people who were cohabitants in a relationship but who
have ceased living together as a couple, and

(b)is to be taken—

(i)as including any two people who, although they have ceased
30living together as a couple, continue to share accommodation
(whether for financial or other reasons), but

(ii)as not including any two people who have subsequently
married or become civil partners of each other.

4 “Relevant child”

(1)35Any reference in this Act to a “relevant child”—

(a)in relation to cohabitants in a relationship, is to any minor child in
respect of whom—

(i)each of the cohabitants is treated in law as being mother, father
or parent, or

(ii)40a child arrangements order in favour of both cohabitants is in
force;

(b)in relation to former cohabitants in a relationship, is to any minor child
in respect of whom—

(i)each of the former cohabitants is treated in law as being mother,
45father or parent, or

(ii)there was in force during the period when the former
cohabitants were living together as a couple a joint residence
order in favour of both the former cohabitants or a child
arrangements order stipulating arrangements by which the
5minor child was to live, spend time or otherwise have contact
with both former cohabitants.

(2)“Relevant children” is to be read in accordance with subsection (1).

5 The prohibited degrees of relationship

(1)For the purposes of this Act, two people are within prohibited degrees of
10relationship if one is the other’s parent, grandparent, sister, brother, aunt or
uncle.

(2)In subsection (1) references to relationships—

(a)are to relationships of the full blood or half blood or, in the case of an
adopted person, such of those relationships as would subsist but for
15adoption, and

(b)include the relationship of a child with his adoptive, or former
adoptive, parents,

but do not include any other adoptive relationships.

(3)For the purposes of this Act, two people (A and B) are within prohibited
20degrees of relationship if one of them falls within the list below in relation to
the other—

(a)child of former civil partner;

(b)child of former spouse;

(c)former civil partner of grandparent;

(d)25former spouse of grandparent;

(e)former civil partner of parent;

(f)former spouse of parent;

(g)grandchild of former civil partner; and

(h)grandchild of former spouse.

(4)30But subsection (3) does not apply where—

(a)A and B have both reached 21 when they start living together, and

(b)the younger (“A”) has not at any time before reaching 18—

(i)lived in the same household as B, in circumstances where B was
then in a relationship with a third person (“C”), and

(ii)35 been treated by B as a child or grandchild of B’s relationship
with C.

Part 2 Financial settlement orders

Application

6 40Application of Part 2

(1)This Part has effect to determine the financial rights and obligations of former
cohabitants.

(2)This Part does not apply to former cohabitants—

(a)where the former cohabitants have ceased living together as a couple
before the commencement date;

(b)to the extent specified in an opt-out agreement in force between former
5cohabitants which is made in accordance with section 12 and which
was entered into on or after the commencement date; or

(c)in so far as a matter that would otherwise fall to be considered under
this Part is already dealt with by a cohabitation agreement or a deed of
trust which is in force between former cohabitants and which was
10entered into before the commencement date.

(3)But, in relation to subsection (2)—

(a)paragraph (b) is subject to any variation or revocation of an opt-out
agreement which is made by the parties under section 13 or by the court
under section 14, and

(b)15paragraph (c) is subject to any variation or revocation of a cohabitation
agreement or deed of trust which is made by the court under section 15.

(4)In any case where this Part applies, it has effect in place of common law rules
and equitable principles (including contract, estoppel and implied trusts).

Financial settlement orders

7 20Application to court for a financial settlement order

(1)A former cohabitant may apply to the court for an order under section 8 (a
financial settlement order).

(2)On an application under this section, the court must inquire, so far as it
reasonably can, into—

(a)25the facts alleged by the former cohabitant who made the application
(“the applicant”), and

(b)the facts alleged by the other former cohabitant (“the respondent”).

(3)No application may be made under this section unless—

(a) the application is made before the end of the period of 24 months
30starting with the date on which the former cohabitants ceased living
together as a couple, or

(b)the former cohabitant who proposes to make the application satisfies
the court that exceptional circumstances would justify a late
application being made.

(4)35No person may make more than one application under this section in relation
to the same respondent unless since the first such application was determined
the applicant and respondent have resumed living together as a couple and
have lived together as a couple for a continuous period of two years since such
resumption.

8 40Power of the court to make a financial settlement order

(1)The court may make a financial settlement order if—

(a)the court is satisfied that the applicant and the respondent have ceased
living together as a couple;

(b)the court is satisfied either—

(i)that the respondent has retained a benefit, or

(ii)that the applicant has an economic disadvantage,

as a result of qualifying contributions the applicant has made; and

(c)having regard to the discretionary factors, the court considers that it is
5just and equitable to make an order.

(2)For the purpose of subsection (1)—

(a)a “retained benefit” is a financial benefit which has been acquired,
retained or enhanced by or for the respondent during the parties’
cohabitation or in contemplation of the parties’ cohabitation, whether
10in the form of capital assets of any kind, income, whether actual or
potential, or earning capacity;

(b)an “economic disadvantage” is a past, present or future financial loss,
burden or cost sustained by the applicant during the parties’
cohabitation or in contemplation of the parties’ cohabitation or likely to
15be sustained by the applicant following its breakdown;

(c)a “qualifying contribution” is any financial or other contribution made
by the applicant to the parties’ shared lives or to the welfare of
members of their families during the parties’ cohabitation or in
contemplation of the parties’ cohabitation or likely to be made by the
20applicant following its breakdown;

(d)the “discretionary factors” are the factors listed in section 9.

(3)If the court determines to make a financial settlement order, it may by its order
adjust any retained benefit, by reversing it in so far as it is reasonable and
practicable to do so, having regard to the discretionary factors listed in section
259.

(4)If the court considers that after the reversal of any retained benefit in
accordance with subsection (3) the applicant would still bear an economic
disadvantage, the court may by its order ensure that the disadvantage shall be
shared equally between the parties, in so far as it is reasonable and practicable
30to do so, having regard to the discretionary factors listed in section 9.

9 Discretionary factors to be considered in determining an application

(1)In deciding whether it considers that it is just and equitable to make a financial
settlement order and, if it does so consider, in determining what order it should
make, the court must have regard to the following discretionary factors—

(a)35the welfare while a minor, of any child of both parties who has not
attained the age of 18;

(b)the income, earning capacity, property and other financial resources
which each of the parties has, or is likely to have in the foreseeable
future (including any pension, allowance or benefit paid or to be paid
40to either party or the eligibility of either party for a pension, allowance
or benefit);

(c)the financial needs and obligations which each of the parties has, or is
likely to have in the foreseeable future;

(d)the welfare of any children who live with or might reasonably be
45expected to live with either party;

(e)the conduct of each party if, but only if, it is of such a nature that it
would be inequitable to disregard it;

(f)the circumstances in which the applicant made any qualifying
contribution, in particular if the respondent shows that the applicant

made such contribution despite the respondent’s express disagreement
that it should be made.

(2)In having regard to the discretionary factors mentioned in subsection (1), first
consideration shall be given to the factor mentioned in subsection (1)(a).

10 5Financial settlement orders

(1) A financial settlement order may, in order to achieve the aims specified in
section 8(3) and (4), require any one or more of the following—

(a) payment of a lump sum (including payment by instalments, secured
lump sums, lump sums paid by way of pension attachment and interim
10payments);

(b) transfer of property;

(c) property settlements;

(d) sale of property;

(e)pension sharing.

(2)15The court may include in a financial settlement order a provision which
prohibits the other from applying, on the death of the applicant, for an order
under section 2 of the Inheritance (Provision for Family and Dependants) Act
1975 (powers of court to make orders), if it considers it just to do so.

11 Provision supplementary to section 10

20Schedule 1 to this Act makes further provision supplementing section 10 and
this section, including provision—

(a)for the purpose of securing compliance with any order made by the
court in connection with such an application, and

(b) for the making of consent orders.

25Opt-out agreements

12 Agreeing to opt-out of financial settlement orders

(1)This section has effect for the purposes of section 6(2)(b).

(2)An opt-out agreement is an agreement between two people which complies
with the requirements of the following provisions of this section.

(3)30An opt-out agreement may be entered into on or after the commencement date.

(4)A person may not enter into an opt-out agreement unless he or she has attained
the age of 16 years.

(5)Any opt-out agreement entered into in contravention of subsection (4) is void.

(6)An opt-out agreement must contain a statement by each of the persons
35entering into it (“A” and “B”) to the effect that each of them—

(a)has separately received legal advice from a qualified practitioner as to
the effect of the opt-out agreement and understands its effect;

(b)agrees that a financial settlement order should not be available in the
event that A and B cease living together as a couple; and

(c)40specifies that the statement in paragraph (b) is to apply either—

(i)in all circumstances, or

(ii) only to such extent, or in such circumstances, as may be
specified in the agreement (for example, only in relation to any
one or more specified parts of A’s or B’s financial affairs or
assets).

(7)5An opt-out agreement must—

(a)be in writing;

(b)be signed and dated by A and by B; and

(c)in respect of each of A and B, be accompanied by a certificate by a
qualified practitioner that the practitioner has given legal advice—

(i)10as to the terms and effect of the proposed opt-out agreement,
and

(ii) in particular, as to its effect on any rights of action the person
signing the agreement may have in the event of them ceasing to
live together as a couple.

(8)15Each signature by A and B under subsection (7)(b) must be witnessed by at
least one person.

(9)An opt-out agreement which is made in the prescribed form is to be taken to
comply with the requirements of this section.

(10)In this section—

• 20“prescribed” means prescribed by regulations made by the Lord
  Chancellor;

• “qualified practitioner” means a solicitor or barrister qualified in England
  and Wales.

13 Variation or revocation by the parties of opt-out agreements

(1)25Where A and B have entered into an opt-out agreement in accordance with
section 12, A and B may by agreement vary or revoke the agreement at any
time.

(2)The requirements of section 12(6)(a), (7) and (8) apply to varying or revoking
an opt-out agreement as those requirements apply to entering into such an
30agreement.

(3)For the purposes of subsection (2), any reference to the opt-out agreement is to
be read as a reference to the variation or revocation.

14 Variation or revocation by the court of opt-out agreements

(1)Where A and B have entered into an opt-out agreement in accordance with
35section 12, either of them may apply to the court for an order under subsection
(2), where one of them makes an application for a financial settlement order.

(2)The court may vary or revoke the opt-out agreement only if the court
determines that the agreement is manifestly unfair to the applicant because
of—

(a)40 the circumstances in which the agreement was entered into or varied,
or

(b) any change in the circumstances of either party which was unforeseen
at the time the agreement was entered into or varied.

Cohabitation agreements or deeds of trust

15 Variation or revocation by the court of cohabitation agreements or deeds of
trust

(1)Where one of the parties to a cohabitation agreement or deed of trust referred
5to in section 6(2)(c) makes an application for a financial settlement order, either
party may apply to the court for an order under subsection (2).

(2)The court may vary or revoke the agreement or deed in such circumstances and
to such extent as the court considers appropriate.

Part 3 10Provisions connected with insurance and with the death and intestacy of
cohabitants

Insurance

16 Insurable interest in the life of the other cohabitant

(1) Each cohabitant in a relationship is to be presumed for the purposes of section
151 of the Life Assurance Act 1774 (no insurance to be made on lives, etc, by
persons having no interest etc) to have an interest in the life of the other
cohabitant in the relationship.

(2)For the purposes of section 3 of that Act (how much may be recovered where
the insured hath interest in lives), there is no limit on the amount of value of
20the interest.

17 Assurance policy for benefit of other cohabitant

Section 11 of the Married Women’s Property Act 1882 (money payable under
policy of assurance not to form part of the estate of the insured) applies in
relation to a policy of assurance—

(a)25 effected by a cohabitant in a relationship (“A”) on A’s own life, and

(b)expressed to be for the benefit—

(i) of the other cohabitant (“B”),

(ii) of any child of A and B, or

(iii) of B and all such children, or any of them,

30as it applies in relation to a policy of assurance effected by a husband and
expressed to be for the benefit of his wife, or of his children, or of his wife and
children, or of any of them.

Registration of death

18 Registering the death of a cohabitant

(1)35Subsection (2) applies in any case where a person (“B”) dies and, immediately
before B’s death, B was a cohabitant in a relationship with another person
(“A”).

(2)For the purposes of Part 2 of the Births and Deaths Registration Act 1953
(registration of deaths)—

(a)A is to be treated as if A were a relative of B, and

(b)A must provide information about B’s death in accordance with the
5provisions of Part 2 of that Act.

Intestacy of cohabitant

19 Succession to estate on intestacy

(1)Section 46 of the Administration of Estates Act 1925 (succession to real and
personal estate on intestacy) is amended as follows.

(2)10In subsection (1)(i) (cases where the intestate leaves a spouse or civil partner)—

(a) in the words before the Table, for “or civil partner,” substitute “, civil
partner or qualifying cohabitant,”, and

(b) in the Table—

(i) for “the surviving spouse or civil partner”, where first
15occurring, substitute “the surviving spouse, civil partner or
qualifying cohabitant (“the survivor”)”, and

(ii) for each subsequent occurrence of “the surviving spouse or civil
partner” substitute “the survivor”.

(3)In subsections (1)(ii) to (v) and (2A) to (4) (which make further provision about
20the rights of spouses, civil partners and others on intestacy) for “or civil
partner” (in each place) substitute “civil partner or qualifying cohabitant”.

(4)After subsection (2A) insert—

“(2B)Where an intestate and the intestate’s spouse or civil partner have died
in circumstances rendering it uncertain which of them survived the
25other, this section has effect as if the intestate did not leave any
qualifying cohabitant.”

(5)After subsection (4) insert—

“(4A)A person is a qualifying cohabitant in relation to an intestate only if—

(a) the intestate was neither married nor in a civil partnership
30immediately before death, and

(b)the person was immediately before the death of the intestate a
cohabitant in a relationship with the intestate within the
meaning of section 2 of the Cohabitation Rights Act 2017
(“cohabitant”).”

20 35Intestacy: rights as respects the home

(1)Schedule 2 to the Intestates’ Estates Act 1952 (rights of surviving spouse or civil
partner as respects the matrimonial or civil partnership home) is amended as
follows.

(2)Before paragraph 1 insert—

(1)40This Schedule applies where a person dies intestate and leaves a
spouse, civil partner or qualifying cohabitant.

(2) In this Schedule—