Cohabitation Bill [HL]

House of Lords

Session 2008 - 09
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Other Bills before Parliament

Cohabitation Bill [HL]

Cohabitation Bill [HL]
Part 2 — Financial settlement orders
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Financial settlement orders
(1)
A financial settlement order may require any one or more of the following—
(a)
payment of a lump sum (including payment by instalment, secured
lump sums, lump sums paid by way of pension attachment and interim
payments);
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(b)
periodical payments (including secured periodical payments);
(c)
transfer of property;
(d)
property settlements;
(e)
sale of property;
(f)
pension sharing.
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(2)
A financial settlement order may include provision for payment by one person
to the other in respect of such reasonable costs of child care for any relevant
child as the court considers appropriate.
(3)
If a financial settlement order requires any former cohabitant (“A”) to make or
secure periodical payments to the other former cohabitant (“B”), the term of the
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periodical payments must not exceed three years unless subsection (4) applies.
(4)
If the court considers it necessary to do so for the purpose of—
(a)
avoiding exceptional hardship to B that would otherwise arise in
consequence of B having lived with A as a couple, or
(b)
meeting the costs of appropriate child care to enable B to care for any
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relevant child whilst maintaining gainful employment,

the court may require A to make periodical payments to B for such longer
period as the court may specify.
(5)
Any provision of a financial settlement order which requires periodical
payments, or secured periodical payments, to be made ceases to have effect—
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(a)
on A or B’s death, or
(b)
on the formation by B of a marriage or civil partnership.
(6)
On an application by A, the court must terminate any provision in a financial
settlement order that requires A to make periodical payments if the court is
satisfied that B is living with another person as a couple.
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Provision supplementary to section 10
(1)
Where the court has made a financial settlement order, either party to it (“A”
or “B”) may apply to the court for—
(a)
variation or revocation of the order,
(b)
suspension of one or more terms of it, and
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(c)
revision of any suspended term.
(2)
In determining an application under subsection (1)—
(a)
the court must have regard to all the circumstances and, in particular,
to any change in any of the matters specified in section 9, and
(b)
the matter specified in section 9(a) is to be given first consideration.
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(3)
On an application by either A or B, the court may include in a financial
settlement order 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 (c. 63).

Cohabitation Bill [HL]
Part 2 — Financial settlement orders
7

(4)
Schedule 1 to this Act makes further provision supplementing section 10 and
this section, including provision—
(a)
for the making of orders for interim payments pending determination
of an application for a financial settlement order,
(b)
for the purpose of securing compliance with any order made by the
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court in connection with such an application, and
(c)
for the making of consent orders.
Opt-out agreements
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Agreeing to opt out of financial settlement orders
(1)
This section has effect for the purposes of section 6(2)(b).
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(2)
An opt-out agreement is an agreement between two people which complies
with the requirements of the following provisions of this section.
(3)
An 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.
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(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
entering 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,
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(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)
specifies 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
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specified in the agreement (for example, only in relation to any
one or more specified parts of A or B’s financial affairs or
assets).
(7)
An opt-out agreement must—
(a)
be in writing,
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(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)
as to the terms and effect of the proposed opt-out agreement,
and
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(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)
Each signature by A and by B under subsection (7)(b) must be witnessed by at
least one person.
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(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—

Cohabitation Bill [HL]
Part 3 — Protections connected with insurance and death
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“prescribed” means prescribed by regulations made by the Lord
Chancellor;
“qualified practitioner” means a solicitor or barrister qualified in England
and Wales.
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Variation or revocation by the parties of opt-out agreements
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(1)
Where A and B have entered into an opt-out agreement in accordance with
section 12, A and B may 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
agreement.
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(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.
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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
section 12, either of them may apply to the court for an order under subsection
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(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)
the circumstances in which the agreement was entered into or varied,
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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
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Variation or revocation by the court of cohabitation agreements or deeds of
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trust
(1)
Where one of the parties to a cohabitation agreement or deed of trust referred
to 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,
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and to such extent, as the court considers appropriate.
Part 3
Protections connected with insurance and death
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Insurable interest in the life of the other cohabitant
(1)
Each cohabitant in a relationship is to be presumed for the purposes of section
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1 of the Life Assurance Act 1774 (c. 48) to have an interest in the life of the other
cohabitant in the relationship.
(2)
For the purposes of section 3 of that Act, there is no limit on the amount of
value of the interest.

Cohabitation Bill [HL]
Part 4 — Miscellaneous and general
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Assurance policy for benefit of other cohabitant
Section 11 of the Married Women’s Property Act 1882 (c. 75) (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)
effected by a cohabitant in a relationship (“A”) on A’s own life, and
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(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,
as it applies in relation to a policy of assurance effected by a husband and
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expressed to be for the benefit of his wife, or of his children, or of his wife and
children, or of any of them.
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Registering the death of a cohabitant
(1)
Subsection (2) applies in any case where a person (“B”) dies and, immediately
before B’s death, B is a cohabitant in a relationship with another person (“A”).
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(2)
For the purposes of Part 2 (registration of deaths) of the Births and Deaths
Registration Act 1953 (c. 20)—
(a)
A is to be treated as if A were a relative of B, and
(b)
must provide information about B’s death in accordance with the
provisions of Part 2 of that Act.
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Further provision in connection with the death of a cohabitant
(1)
Schedule 2 to this Act contains provision—
(a)
to align with this Act certain existing statutory protections that are
available to a surviving cohabitant on the death of the other cohabitant,
and
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(b)
to extend to the surviving cohabitant certain connected provisions.
(2)
Part 1 of Schedule 2—
(a)
amends the Inheritance (Provision for Family and Dependants) Act
1975 (c. 63), and
(b)
includes provision setting out circumstances in which a former
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cohabitant who receives no reasonable financial provision from the
deceased’s estate may apply to the court.
(3)
Part 2 of Schedule 2—
(a)
amends the Fatal Accidents Act 1976 (c. 30), and
(b)
includes provision for the court to consider a claim for bereavement
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damages which is made by a surviving cohabitant.
Part 4
Miscellaneous and general
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General interpretation
In this Act, except where the context otherwise requires—
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Cohabitation Bill [HL]
Part 4 — Miscellaneous and general
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“the applicant” and “the respondent”, in relation to an application for a
financial settlement order, have the meaning given in section 7(2);
“cohabitant” has the meaning given in section 2;
“the court” has the meaning given in section 21;
“the commencement date”, in relation to any provision of this Act, means
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the date of the coming into force of that provision;
“financial settlement order” means an order under section 8;
“former cohabitant” has the meaning given in section 3;
“relevant child” has the meaning given in section 4;
“residence order” has the same meaning as in the Children Act 1989
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(c. 41).
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Jurisdiction of the courts
(1)
For the purposes of this Act, the court means—
(a)
the High Court, or
(b)
where a county court has jurisdiction by virtue of an order made under
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this section, a county court.
(2)
The Lord Chancellor may by order specify proceedings under this Act which
may only be commenced in—
(a)
a specified level of court,
(b)
a court which falls within a specified class of court, or
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(c)
a particular court determined in accordance with, or specified in, the
order.
(3)
The Lord Chancellor may by order specify circumstances in which specified
proceedings under this Part may only be commenced in—
(a)
a specified level of court,
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(b)
a court which falls within a specified class of court, or
(c)
a particular court determined in accordance with, or specified in, the
order.
(4)
For the purposes of subsections (2) and (3) the levels of the court are—
(a)
the High Court, and
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(b)
a county court.
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Power to make transitional and consequential provisions
(1)
The Secretary of State may by order make—
(a)
any incidental, consequential or supplemental provision, and
(b)
any transitional or saving provision,
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that the Secretary of State considers necessary or expedient for the purposes of,
in consequence of, or for giving full effect to, any provision of this Act.
(2)
The power under this section is not restricted by any other provision of this
Act.
(3)
An order under this section may amend, repeal or revoke any provision of—
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(a)
an Act passed before or in the same session as this Act, or
(b)
subordinate legislation made before the passing of this Act.

Cohabitation Bill [HL]
Part 4 — Miscellaneous and general
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(4)
In this section “subordinate legislation” has the same meaning as in the
Interpretation Act 1978 (c. 30).
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Regulations and orders
(1)
Orders and regulations made under this Act are to be made by statutory
instrument.
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(2)
Any statutory instrument made under this Act may—
(a)
make different provision for different cases,
(b)
contain such incidental, consequential, transitional or supplemental
provision as the person making it considers appropriate.
(3)
No order is to be made under—
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(a)
section 22, or
(b)
paragraph 17 of Schedule 1 to this Act,

unless a draft of the order has been laid before, and approved by, a resolution
of each House of Parliament.
(4)
Any other such statutory instrument made under this Act is subject to
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annulment in pursuance of a resolution of either House of Parliament.
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Extent
This Act extends to England and Wales only.
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Commencement
(1)
The following provisions of this Act come into force on the passing of this
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Act—
(a)
this Part,
(b)
sections 12 and 13, and
(c)
any other provision of this Act so far as is necessary for enabling the
exercise on or after the day on which this Act is passed of any power to
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make orders or regulations that is conferred by the provision.
(2)
The other provisions of this Act come into force in accordance with provision
made by order by the Lord Chancellor.
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Short title
This Act may be cited as the Cohabitation Act 2009.
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