The UK's senior family judge has come out in favour of giving property rights to cohabiting couples who split up after living together.
Sir Nicholas Wall, the president of the Family Division, claimed the current system was unjust and judges should have the discretion to decide on claims. Justice Wall said the courts would be more sympathetic to a claim where the couple had been living together for a significant amount of time.
In 2007 the UK's Law Commission called for new legal rights for people living together in long-term relationships. In Ireland, the new Civil Partnership Act gives cohabiting couples certain legal protections if that are together for five years.
The Commission's paper, ‘Cohabitation: The Financial Consequences Of Relationship Breakdown’, proposed that, for cohabiting couples with children, there should be no minimum period of cohabition to qualify for relief.
For couples without children, the paper recommended that there should be what it called a “minimum duration period”, which it said “should be set by statute within a range of two to five years”.
It also recommended that applicants for such relief should only be granted where an applicant has an economic disadvantage resulting from contributions made by the applicant, such as a loss of savings as a result of expenditure or of earnings lost during the relationship, lost future earnings, or the future cost of paid childcare. This is also similar to the new Irish law.
Under the proposals, courts could order lump sums, property transfers, property settlements, orders for sale and pension sharing as a means of providing for any economically disadvantaged party to a cohabiting relationship which has broken down.
At the moment some women lose out because there is an absence of any law on the division of cohabiting couples' assets, but new laws could give judges the discretion to award maintenance payments, a lump sum or a share of property.
Sir Nicholas told the Times: "I am in favour of cohabitees having rights because of the injustice of the present situation. Women cohabitees, in particular, are severely disadvantaged by being unable to claim maintenance and having their property rights determined by the conventional laws of trusts."
He added: "If cohabitation has been short and the contribution minimal, judges would not be sympathetic to a claim."
Sir Nicholas, 65, who is married with four children, said he was "disappointed" the Government had not moved to implement the reforms.
A change in the law would have to strike a delicate balance between providing similar protection to cohabiting couples as married couples and stopping short of automatic rights to property and money. A sixth of couples in Britain live together but do not marry, with the number expected to rise.
Sir Nicholas insisted the reform would not undermine the institution of marriage, which he described as "the most stable relationship for bringing up children and for support".
Meanwhile, an editorial in today's Daily Telegraph has said that politicians, rather than facilitating the increasing rate of cohabitation, "politicians should concern themselves with reversing the decline in marriage – and, indeed, extolling its virtues".