Fools don't rush in

ResolutionTo coincide with the publication of the Law Commission Report, Resolution yesterday issued a press release giving details of the results of a survey which indicated that more than 70% of family lawyers surveyed stated that, in their experience, the law badly fails to protect the interests of cohabiting couples when they separate. The primary reasons for this failure were cited as the lack of any legal remedy, costs and uncertainty of outcome. Resolution states that this clearly shows the need for reform, and that accordingly it fully supports the Law Commission’s proposals, and "will be pressing the government to move forward and introduce new legislation without delay".

Whilst I certainly agree with the need for reform (I took part in the survey), I'm not entirely convinced by the Law Commission’s proposals, and I certainly don't want any change to be 'railroaded through' without due consideration.

Take for example the 'opt-out' agreement. Lynne Bastow at DivorceSolicitor has already pointed out her concern: "No doubt it will become standard practice for the cohabitee with financial clout to insist that the cohabitee with financial disadvantage signs the opt-out before they move in". Opt-out agreements can be set aside, but only if their enforcement would give rise to "manifest unfairness", which is clearly intended to be a high hurdle to jump. Note also that the presence of children will not be a bar to entering into an agreement.

As to the grounds for financial relief, these introduce three concepts: "qualifying contributions" the applicant has made (including future contributions, for example to the care of the children after separation), the respondent having a "retained benefit" and the applicant having an "economic disadvantage". The "economic disadvantage" and the idea of non-financial contributions are new, and are to be applauded - they will provide financial relief, for example, to parties that give up work to look after the children. As for "retained benefit" however, I can see this giving rise to similar disputes to those we have at present whereby one party claims an interest in the property belonging to the other, as a result of financial contributions. The proposals do give the court some discretion (see paragraph 4.38), but if you're going to go down the discretionary route, why not go the whole hog and simply say that the court can make whatever order it deems fit, having regard to all of the circumstances? It seems sometimes that the Law Commission is struggling to ensure that it doesn't give cohabitants the same rights as married couples.

As indicated by Resolution's survey, most of us are agreed upon the need for reform, and would like this to happen quickly, but surely we want the best new system, rather than rushing ahead with any old system? I'm not saying the Law Commission's proposals are bad, but I'm not yet convinced that they are the best we can come up with.