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Money, marriage and cohabitation

Date:26 JUN 2006

By Stuart Bridge, Law Commissioner.

In May 2006, the Law Commission published its consultation paper, Cohabitation: The Financial Consequences of Relationship Breakdown. The author says this represents the half-way stage of this important project which reviews the existing law that applies when opposite or same-sex cohabiting couples separate and considers whether certain cohabitants should be entitled to claim financial relief. The paper argues the case for more effective remedies to be made available on separation where a couple has children, criticising the shortcomings of the general law of trusts and Sch 1 to the Children Act 1989. It sets out a scheme for financial relief, with family law remedies such as property transfer, periodical payments, lump sum and pension sharing being available to the courts in the exercise of their discretion. It invites the views of consultees as to whether certain cohabitants who do not have children should also be eligible to apply for financial relief, and if so in what circumstances.

Seven days before the publication of the Commission's Consultation Paper, judgment was given in Miller v Miller and McFarlane v McFarlane [2006] UKHL 24, [2006] 1 FLR 1186. These decisions, the sequels to White v White [2001] FLR 981, marking only the second consideration of the substantive law of ancillary relief on divorce by the House of Lords, provide important guidance regarding the basic principles underpinning the jurisdiction. This article takes the opportunity to reflect further upon the rationale for providing financial relief at the end of personal relationships and the justification for adopting different approaches to married and unmarried couples. Issues such as need, partnership: equal sharing and compensation are considered. See August [2006] Fam Law 641 for the full article.

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