 Reforming the law for people who live together ( 73kb)
Introduction
Citizens Advice is the national body for Citizens Advice Bureaux in England, Wales and Northern Ireland. The CAB service is the largest independent network of free advice centres in the UK, with 430 bureaux giving advice from over 3,000 outlets. In 2007/8 we dealt with 181,000 problems relating to family or relationship issues, including 12,252 problems concerning marriage, civil partnership and cohabitation issues and 122,039 concerning divorce, relationship separation or dissolution issues.
We use this evidence base to influence policy makers and inform policy research.1 In both our capacity as an advice provider and policy stakeholder, we are committed to a positive vision of gender and sexual equality.
From our evidence base we see that serious injustices can arise from relationship breakdown or death within cohabiting unmarried relationships. The situation over claiming bereavement benefit is a very obvious example. As more couples choose not to marry, the legal and financial issues they face with parental responsibility, mortgages, separation and death become extremely important for policy-makers to understand and to address. So it is disappointing that the Government have not given more consideration to enact the recommendations outlined by the Law Commission.2 We therefore welcome this consultation on introducing law reforms, and applaud the initiative to pilot private members’ legislation before Parliament in order to encourage Government to deliver legal reforms that will lead to fairer outcomes for former cohabitants.
Overall, legal reforms need to be progressed within a wider social policy context. Our evidence consistently highlights how relationship breakdown can be seriously traumatic and have life changing consequences for our clients’ finances and wellbeing. So measures are needed to support people to resolve problems and lessen the trauma, such as improved access to family mediation, legal aid, and protection against violent behaviour. Secondly, how the family justice system treats and evaluates the needs and entitlements of cohabiting households and individuals cannot be considered in isolation from how the benefits system works, for example how the ‘cohabitation rule’ operates.3 It also needs to be understood that whilst family law has an important role in protecting rights, for many people the legal system may be an inadequate or inappropriate route for resolving personal relationship and financial problems. Thirdly, as the Law Commission’s report makes clear, often the most difficult legal issues around cohabitation arise within the context of property rights such as shared ownership and mortgages, tenancy, residency or occupation; so the aim to should be to support people in making difficult personal decisions in relation to their finances and their accommodation and to improve legal awareness and financial capability.
Key Concerns
Throughout our response, and our previous engagement with the Law Commission, we have sough to draw attention to the following key concerns.
- Avoiding some of the problems with the cohabitation rule in social security legislation
- Ineligibility of long-term cohabiting unmarried partners for claims for bereavement benefit on death of one partner
- Problems with tenancy assignment and dealing with mortgage liabilities in relationship breakdown situations
- The need for the proposed scheme to provide protection against serious financial hardship arising as a result of the breakdown of a cohabiting relationship
- Access to legal advice
Scope of legislation
Q1. What type of scheme should the Bill provide?
We consider that a purely voluntary ‘opt-in’ approach to registering as co-habitants may be insufficient to provide protection in many situations of relationship breakdown. Many of our clients have chaotic lifestyles and may be unlikely to register for the benefits of such a voluntary scheme. We therefore endorse the presumptive approach – this has been followed in other jurisdictions and is the basis of the Law Commission’s recommendations.
Q2. Do you agree that the scheme should only apply to co-habitants meeting the eligibility criteria based on a committed relationship?
If there is a presumption, then difficult issues arise around what sort of definitions and eligibility criteria are appropriate to apply. Firstly, we consider that the Bill should not be attempting to create a new legal status of cohabitant conferring a broad range of rights and privileges. Whist there is much evidence to show that cohabitation instead of marriage is increasingly chosen as alternative family form, it cannot be the role of the law to legislate around every conceivable domestic arrangement and relationship commitment. Research indicates that the reasons why couples choose to cohabit without marrying can vary significantly, from those who consciously reject marriage as a social and legal institution, to those who (sometimes unaware of the legal significance of marriage) may regard themselves as being “as good as married” anyway, and those who prefer to avoid incurring long-term responsibilities and expectations in regard to their co-habiting partner.4
We consider that the primary focus of the Bill should therefore on the protection against hardship in the event of relationship breakdown or termination. This protection cannot always be provided by the benefits system alone, and must therefore be embedded in some in a fair framework of legal remedies. We regularly see clients for whom relationship breakdown is the primary route into social exclusion and poverty, and no remedy can be found. For example;
A Sussex CAB reported that a 58 year old, recently bereaved man who worked less than 16 hours a week suffered hardship when his unmarried partner of 11 years recently died. The client found that he was not eligible for bereavement benefit..
A South London CAB reported that a 55 year old woman from Poland had become estranged from her British partner after living together for five years. Although they are still living in her partner’s one bedroom council flat, the client had been told by her partner to leave. The client was never recorded as included in the tenancy at this address, as the partner had advised the client not to as it would affect his benefits. Consequently, the client has no recourse to seek re-housing by the same social registered landlord, because she had never been party to the tenancy agreement. Although she was working full-time, her annual wage was barely £10,000 per year which would make private sector renting difficult and unaffordable.
The Bill should therefore be drafted with the consequences of relationship breakdown in mind, and should not pre-occupy itself unduly with fine-tuning the definition of cohabitation. Indeed an overly rigid definition may itself have adverse and unintended consequences, just as the rather unopaque “living as husband and wife” formula used in benefits regulations has been the subject of numerous appeals, guidance notes and circulars. So the focus should be clarity about what circumstances trigger the proposed rights. In our experience, unclear application of the ‘cohabitation rule’ in benefit claims can cause problems and may not always provide protection for financially vulnerable cohabitants who may be in very different circumstances from married couples. Although we make no principled objection to the requirement for cohabiting couples to claim benefits jointly, we see many cases where the outcomes of the cohabitation rule can be perverse.
A CAB in the South West of England reported that a lone parent who was claiming income support, informed the Jobcentre Plus when her boyfriend moved into her home. As a result, her income support stopped. They then decided that it was too early in the relationship to cohabit and he moved back into accommodation provided by his employer. The client requested that her income support should be reinstated. A compliance officer visited and after asking a few questions, decided that the boyfriend was still living with client and turned down her claim for income support. The client was having great difficulty supporting herself and her child and did not want to borrow money from her boyfriend, or involve herself in a long drawn out appeals process.
A CAB in Lancashire reported that a lone parent who had recently separated from her partner was claiming income support. She lived in a council accommodation with the tenancy in her name. Her ex-partner now lived and worked in another town in the county, but came to the client’s home one day per week to visit his daughter. He stayed overnight due to transport problems. The client went into the local Jobcentre Plus recently to claim income support. However she was advised that she could not claim it as she was still living with her ex partner. They had no joint financial ties such as bank accounts and he had not been paying any maintenance. All the utility bills were in the client’s name. Although the client was still getting tax credits, she was beginning to accrue rent and council tax arrears. As a result of the advice she was given by Jobcentre Plus, the client failed to proceed with a claim and get a decision that could have been challenged.
In light of our experience with social security law, we therefore consider it may be inappropriate to have a definition based on any set threshold of relationship commitment which may be subject to endless adjudication, although we agree that including a minimum two year time period of cohabitation before relief can be claimed might be appropriate. Moreover, a set ‘threshold’ approach would appear to moving away from the Law Commission’s focus that many of the key legal problems and anomalies arise within a context of shared property rights or residence. If there is one overwhelming theme from our evidence, it is that relationships are hugely complex and diverse, so defining cohabitation should be around shared household issues, with eligibility triggered by household breakdown.
Reforming the law for people who live together ( 73kb)
1. For example we supported 2004-2007 ESRC research by Douglas, Pearce and Woodward on property and cohabitation http://www.law.cf.ac.uk/researchpaper/papers/1.pdf and engaged with the Law Commission’s consultations
2. Cohabitation: The financial consequences of relationship breakdown (2007) Law Com 307
3. Social security law treats cohabiting couples claiming means-tested benefits as if they are married - two people who are married or ‘living together as husband and wife’ cannot make individual claims for benefit; one of them must make the claim for both and any children in the household. Benefit is then assessed on the basis of their ‘couple status’, joint incomes and the number of people in their ‘household’.
4. British Social Attitudes Research
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