The UK government’s advisory body on law reform, the Law Commission, has published its recommendations for dealing with the uncertain state of the law as it applies to cohabiting couples on their separation. Cohabitants who separate currently have to fall back on the law of implied trusts, which is complicated, confusing, and takes no account of domestic contributions, according to Simon Bethel, an associate at Cambridge, UK, law firm Mills & Reeve. If there are children, the appropriate additional route for dealing with their needs is via the Children Act 1989, which concentrates too little on the needs of the parent with ongoing care of the child, plus the CSA for child maintenance: nothing in this report will change that jurisdiction, says Mr Bethel. The report emphasises that mediation should be the first route for cohabitants needing to settle a dispute of this nature. The recommended new statutory scheme would apply to all eligible cohabitants living together at the time of implementation of the Act, or who subsequently cohabit, who have chosen not to opt out. The commission recommends that there should be pro forma documents available to make it easy for people to opt out of the scheme if they wish to do so. Cohabitants will be able to use the scheme if they satisfy eligibility criteria and have made qualifying contributions. Eligibility criteria are that the cohabitants either have a child or children together and lived together for any period of time before or after the child was born, or do not have a child but satisfy “minimum duration” requirements which have not yet been determined but are recommended as between 2-5 years of living together. A qualifying contribution is one that has enabled one party to retain a benefit, or the other to suffer an economic disadvantage, which endures after separation. This could relate, for example, to an earning capacity or a broken career path, or a contribution to a property in the name of the other, unpaid work in the business of the other, or it could even be a future contribution including looking after children. A causal connection is required between the contribution made and the benefit/disadvantage alleged. It is recommended that there be a bar to bringing claims more than two years after the end of a cohabiting relationship, unless there are exceptional circumstances, says Mr Bethel. The substantive objective of the scheme is to bring about a clean break between the cohabiting partners, while addressing the benefit/disadvantage balance created in the relationship by the contributions made. The tools available to the court to do this are lump sums, including by instalments and pension attachment, and interim lump sums; property transfers, settlements and orders for sale; and pension sharing. There is a recommendation that periodical payments should not generally be available. However, the possibility of ordering periodical payments to cover childcare costs is discussed. The commission recommends reforming the Inheritance Act along the same lines as their proposals for “live” claims, so that a claim can be made by the cohabitant of a deceased if they had cohabited for two years or more before death, or if they cohabited at any time and had a child together. Julian Washington, partner at Mayfair law firm Forsters said of the proposals: "The powerful and persistent myth of 'common law marriage' is a major cause of injustice for families. The Law Commission's proposals are a fair and proportionate response to this problem. No couple would be forced to abide by the new regime if they wished to organise their affairs differently and an ex-partner would only qualify for relief if the relationship - and their contribution to it - passed a basic threshold." James Freeman, family law solicitor at City law firm Speechly Bircham, agrees: “It is quite right that the law needs changing. The Law Commission have correctly identified the fact that most cohabitants have no idea how exposed they could be on the breakdown of their relationship. "The present law is a mishmash of old equitable doctrines that make no distinction between couples and flatmates. It really is not fit for purpose. In proposing a new system, it has needed to strike a rather delicate balance between protecting the vulnerable and preserving the institution of marriage. "By setting qualifying thresholds, focusing on relationship-generated advantage and disadvantage and permitting 'opt-outs', they have found a coherent middle way. It remains to be seen whether the political will is there to make these proposals into law - inevitably any attempt to do so will draw heavy flak from the traditionalist lobby. Whatever happens with these proposals, couples who do not wish to marry need to think properly about how they are going to regulate the financial aspects of their relationship. In many cases it will make sense for them to have a cohabitation agreement, and thereby both security and autonomy.”