Commission plans new rights for unmarried couples who separate

Unmarried parents who live together will be given new rights to make financial claims against each other's earnings and assets when they split up if the government accepts proposals unveiled by the Law Commission yesterday.

The official law reform body has provisionally recommended the reform for England and Wales in a consultation paper, and asked for views on whether the new regime should go further. It wants the public to say whether the same right should be extended to unmarried couples without children - including gay couples who have not registered civil partnerships - and, if so, whether there should be a minimum period of living together.

It also proposes that couples be able to opt out by drawing up cohabitation contracts spelling out what should happen to their money and property if they break up.

The commission was asked by the government to suggest new remedies for unmarried partners amid concern that they have few legal rights compared with divorcing couples, and that financially weaker partners lose out heavily under current law. Final proposals and a draft bill are expected in August 2007.

The commission's chairman, high court judge Sir Roger Toulson, and the head of the cohabitation project team, Stuart Bridge, stressed that the reform would not equate living together with marriage.

Although unmarried partners would be able to apply for the same range of financial orders as divorcing spouses - maintenance, a share of property or pension, or a lump sum - there would be no automatic right to apply, as on divorce.

Only cohabiting parents and, possibly, those whose partnership had lasted the required length of time would be able to go to court. And, unlike divorcing partners, who are automatically entitled to a share of each other's wealth, a cohabitee would have to show a significant economic disadvantage from the relationship or that the ex-partner had gained a significant financial advantage. But apart from big-money cases, financial awards on cohabitation breakdown and on divorce may be much the same, the commissioners acknowledged.

They cited the case of B, who was splitting from A after a 15-year relationship during which the couple and their two children had lived in the house bought by A before they met. B gave up her job to look after the children, while A paid the mortgage and supported the family. On separation, A owned the house outright and had a good career and pension; B had no job, no home, childcare obligations and a reduced earning capacity. Under current law, she has no claim to a share in the value of the home and no right to apply for maintenance apart from child support. Under the new regime, she could stake a claim based on economic disadvantage.

The government forecasts that by 2031 the number of cohabiting couples, now more than 2 million, will nearly double to 3.8 million, rising from one in six to one in four of all couples.

David Allison, of the family law solicitors' group Resolution, said the proposals would make the law fairer. "Under the existing law, many people who live with someone may suffer significant injustice and financial hardship if the relationship breaks down, or if their partner dies.

"Most unmarried couples are ignorant of the lack of protection or rights - most believe, wrongly, that they are protected by the so-called status of common-law husband or wife."

A similar law came into force in Scotland in May, but lawyers fear that many cohabiting couples are unaware of it.