Cohabitation Bill [HL]

House of Lords

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Cohabitation Bill [HL]

Cohabitation Bill [HL]
Part 1 — Introductory
1

A
Bill
To
Provide certain protections for persons who live together as a couple or have
lived together as a couple; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Part 1
Introductory
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Overview
(1)
This Act establishes a framework of rights and responsibilities for cohabitants,
with a view to providing basic protections—
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(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
for the benefit of the other or for the benefit of a relevant child.
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(2)
The protections under this Act apply to “cohabitants” (within the meaning of
section 2) and “former cohabitants” (within the meaning of section 3).
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“Cohabitant”
(1)
For the purposes of this Act, references to the cohabitants in a relationship are
to any two people (whether of the same sex or the opposite sex) who—
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(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
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same minor child,

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Cohabitation Bill [HL]
Part 1 — Introductory
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(b)
a joint residence order in favour of A and B is in force in respect of a
minor child, or
(c)
A and B have lived together as a couple for a continuous period of two
years or more.
(3)
The second condition is that A and B—
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(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
other.
(4)
For the purposes of subsection (2)(c), in determining the length of the
continuous period during which two people have lived together as a couple—
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(a)
any period of the relationship that fell before the commencement date
is to be taken into account, but
(b)
any 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
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(3)(b) are set out in section 5.
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“Former cohabitant”
Any 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
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(b)
is to be taken—
(i)
as including any two people who, although they have ceased
living 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
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married or become civil partners of each other.
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“Relevant child”
(1)
Any 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—
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(i)
each of the cohabitants is treated in law as being mother, father
or parent, or
(ii)
a joint residence order in favour of both cohabitants is in force;
(b)
in relation to former cohabitants, is to any minor child in respect of
whom—
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(i)
each of the former cohabitants is treated in law as being mother,
father or parent, or
(ii)
a joint residence order in favour of the former cohabitants was
in force during the period when the former cohabitants were
living together as a couple.
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(2)
“Relevant children” is to be read in accordance with subsection (1).

Cohabitation Bill [HL]
Part 2 — Financial settlement orders
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The prohibited degrees of relationship
(1)
For the purposes of this Act, two people are within prohibited degrees of
relationship if one is the other’s parent, grandparent, sister, brother, aunt or
uncle.
(2)
In subsection (1) references to relationships—
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(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
adoption, and
(b)
include the relationship of a child with his adoptive, or former
adoptive, parents,
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but do not include any other adoptive relationships.
(3)
For the purposes of this Act, two people (A and B) are within prohibited
degrees of relationship if one of them falls within the list below in relation to
the other—
Child of former civil partner
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Child of former spouse
Former civil partner of grandparent
Former spouse of grandparent
Former civil partner of parent
Former spouse of parent
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Grandchild of former civil partner
Grandchild of former spouse.
(4)
But 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—
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(i)
lived in the same household as B, in circumstances where B was
then in a relationship with a third person (“C”), and
(ii)
been treated by B as a child of B’s relationship with C.
Part 2
Financial settlement orders
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Application
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Application 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—
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(a)
where the former cohabitants have ceased living as a couple together
before the commencement date,
(b)
to the extent specified in an opt-out agreement in force between former
cohabitants which is made in accordance with section 12 and which
was entered into on or after the commencement date, and
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(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

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Part 2 — Financial settlement orders
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trust which is in force between former cohabitants and which was
entered 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
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under section 14, and
(b)
paragraph (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).
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Financial settlement orders
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Application 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
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reasonably can, into—
(a)
the facts alleged by the former cohabitant who made the application
(“the applicant”), and
(b)
any facts alleged by the other former cohabitant (“the respondent”).
(3)
No application may be made under this section unless—
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(a)
the application is made before the end of the period of 24 months
starting 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
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application being made.
(4)
No person may make more than one application under this section in relation
to the same respondent.
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Circumstances in which a court may make a financial settlement order
(1)
The court may make a financial settlement order if—
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(a)
the court is satisfied that the applicant and the respondent have ceased
living together as a couple, and
(b)
having regard to all the circumstances, the court considers that it is just
and equitable to make an order.
(2)
In determining any application for a financial settlement order—
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(a)
the court must have regard, in particular, to the matters specified in
section 9,
(b)
the matter specified in section 9(a) is to be given first consideration, and
(c)
there is to be no presumption that the applicant and the respondent
should share equally in property belonging to either or both of them.
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(3)
In making a financial settlement order, the court must so far as practicable seek
to ensure that effect is given to each of the following principles—

Cohabitation Bill [HL]
Part 2 — Financial settlement orders
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(a)
the applicant and the respondent should be self-supporting as soon as
reasonably practicable, and
(b)
any award made in favour of an applicant should not exceed the
applicant’s reasonable needs.
(4)
If the court decides to make a financial settlement order, it may require either
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the applicant or the respondent to take such steps specified in section 10 as the
court considers appropriate and specifies in the order.
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Matters to be considered in determining an application
In determining any application for a financial settlement order, the court must
have regard to—
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(a)
the welfare of any relevant child,
(b)
the nature of the commitment between the applicant and the
respondent (referred to in the following provisions of this section as
“the parties”) when they were living together as a couple, including the
degree of dependency or interdependency,
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(c)
the overall length of the period or periods during which the parties had
been living together as a couple,
(d)
the contributions (including by looking after the home or caring for any
relevant child) which each of the parties—
(i)
has made in the course of their living together as a couple, or
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(ii)
is likely to make in the foreseeable future in consequence of
their having lived together as a couple,
(e)
any economic advantage which, in consequence of their having lived
together as a couple, each of the parties retains or is likely to retain in
the foreseeable future,
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(f)
any economic disadvantage to which, in consequence of having lived
together as a couple, each of the parties remains subject or is likely to
remain subject in the foreseeable future,
(g)
the income, property and other financial resources which each of the
parties has, or is likely to have in the foreseeable future (including the
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rate of any pension, allowance or benefit paid to either party or the
eligibility of either party for a pension, allowance or benefit),
(h)
the financial needs and obligations which each of the parties has, or is
likely to have in the foreseeable future,
(i)
the physical or mental ability of each of the parties to obtain gainful
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employment,
(j)
the availability and costs of appropriate child care to enable each of the
parties to meet their respective responsibilities of caring for relevant
children whilst maintaining gainful employment,
(k)
any responsibility which either of the parties may have to support
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another person,
(l)
any payments made in respect of the maintenance of a child or children
in the care and control of either of the parties,
(m)
the needs of any children who live with either of the parties but who do
not fall within paragraph (a),
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(n)
any written agreement or declaration of trust relating to the parties or
their property, and
(o)
any other circumstances which the court considers relevant.