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IMPROVING FAMILY LAW IN SCOTLAND: ANALYSIS OF WRITTEN CONSULTATION RESPONSES

CHAPTER FIVE LEGAL RIGHTS FOR COHABITANTS

The consultation stated:

The Executive thinks that there should be legal safeguards for cohabiting couples and that the Scottish Law Commission recommendations strike the balance between addressing the legal vulnerability of many cohabiting couples in Scotland and not creating an unjustified and unwieldy legal framework which interferes unduly with the private lives of individuals and which fails to acknowledge the special place of marriage in society.

The consultation asked:

5.1 DO YOU THINK THAT COHABITING COUPLES SHOULD HAVE LEGAL PROTECTION?

In total, it was clear from 230 responses whether the respondent supported or opposed this proposal, with a further 2 responses providing both support and opposition. A few remaining responses provided no clear view but added commentary of relevance. As before, responses from the individual respondent sector differed in general from those submitted by organisations. A summary of views is provided in Table 3 below.

Table 3: Summary of views on the proposal to give cohabiting couples legal protection

NB. Percentages may not total 100% exactly due to rounding

Overall, respondents were fairly evenly split in their support (47%) and opposition (52%) to the proposal. However, these figures mask significant differences between the views of different categories of respondent. In particular, 6 out of 10 individual respondents (61%) expressed their opposition to the plan, whilst almost three-quarters (73%) of responses from organisations were clearly in favour.

Reasons for Favouring the Proposal to give Cohabiting Couples Legal Protection

Those respondents in favour of the proposal provided a range of reasons in support of their view. Many of these were pragmatic in nature, and perhaps whilst not supporting co-habiting per se, accepted that such arrangements are common and attempted to contribute to an appropriate framework in which cohabiting should operate. One respondent summed this up as supporting the proposal in order to protect the vulnerable rather than for any good social reason (Indiv 2). Others perceived the need to introduce legal protection for cohabiting couples but to ensure that the distinction between the status of marriage and cohabiting remained preserved (LG 63, Char 64, Indiv 66, Indiv 83, Indiv 95, Pol 104).

A recurring theme was that legal protection should not be instigated until couples had cohabited for a set period, with durations of between 1 year and 5 years cited (Indiv 1, Indiv 39, Indiv 40, Indiv 81, Indiv 131, Indiv 146, LG 133, Misc 164, Legal 316). However, when respondents considered the detailed proposals durations of up to 10 years were suggested (as noted later in this chapter). Associated with this theme was what some respondents considered to be the potential difficulties in defining a cohabiting couple with clear start and end dates for their cohabiting relationship (LG 133, Char 184, Legal 316, Faith 318, Legal 323, Indiv 333). Indeed, some suggested that the proposals on legal rights for cohabitants were " vague and uncertain in nature" (Misc 202) and may create " legal uncertainties" (Legal 190).

A further common recommendation was for the proposals to apply equally to same sex couples (Indiv 34, Indiv 34, Char 75, Univ 122, Char 258) (although one voice of dissent urged against this (Indiv 84)).

Other respondents provided reasons to support the proposal. These included:

• Good for any children of cohabitants (Char 90, Char 127, FM 194, LG 324)
• Promotes the "family" (Indiv 10)
• Reduces stress (Couns 139, Couns 216, Couns 259)
• Gives security (Indiv 36)
• Gives cohabitation more status/prominence (LG 59)
• Enables partners not to feel they are trapped for financial reasons in a cohabiting relationship (Couns 216, Couns 259)

Finally, one respondent emphasised that cohabiting couples were not free at present to make their own arrangements regarding all financial affairs and suggested the instigation of a standard framework agreement which covered, for example, property, pensions, insurance, medical circumstances, and so on (Indiv 159).

Reasons for Opposing the Proposal to give Cohabiting Couples Legal Protection

Three main reasons for opposing the proposal emerged:

• Would undermine marriage
• People can marry if they want such protection
• This would discourage people from marrying

Comments included:

" it's like saying you must have a driving license to drive a car but if you don't have one you can have the benefits of driving anyway" (Char 175)

" makes a mockery of marriage and, indeed, almost invalidates it" (Indiv 188)

" against proposals which further blur the lines between cohabiting and married couples" (Faith 195)

" erodes distinctiveness of marriage" (Indiv 200)

In a similar vein, several respondents commented that cohabiting couples had made a specific choice not to marry and should not then be provided with what were perceived to be some of the benefits of marriage:

" they freely choose not to marry, so why should they be treated as if they are married? They can't have it both ways!" (Indiv 290)

In contrast, some respondents argued that the proposals would undermine the choice of cohabitees to be free from the various restrictions associated with marriage and that they would introduce unwelcome complexities into the relationship (" takes away right to live together without legal ties" (82 FM); " many cohabitees do not wish to be bound by the same rules as marriage" (Faith 92)).

Many perceived the cohabiting relationship to be a temporary state which did not warrant such legal rights (Indiv 70, Indiv 111, Indiv 151, Indiv 156, Indiv 166, Indiv 197, Indiv 222, Indiv 225, Indiv 234, Indiv 253, Indiv 304, Indiv 307, Indiv 308).

Others rationalised that cohabitees are already aware of, or should be made aware of, what were perceived as the pitfalls of cohabiting which would preclude the need for the Government to introduce such a formality to their relationship (Indiv 53, Indiv 67, Faith 93, Indiv 187, Indiv 311). One comment was that if people are not prepared to take responsibility for their own lives there is little that the Executive can realistically be expected to do for them (Char 213).

Other views were that the Government should be doing all it can to encourage marriage rather than protecting cohabitation (Indiv 68, Indiv 130, Faith 195, Indiv 303, Faith 320). One respondent remarked that:

" the ideal (of marriage) should be promoted rather than dragging everything down to the lowest common denominator" (Indiv 227)

A few commentators considered that introducing such rights constituted a separation of rights from responsibilities (Indiv 107, Indiv 120, Faith 320).

Again, concerns regarding potential legal difficulties surfaced (Faith 162 - " could lead to some veritable legal quagmires"; Faith 163, Indiv 167 - how can cohabitation be proved?; Char 178 - defining of cohabitation by courts could be fairly " arbitrary"; Char 184, Indiv 204 - " cohabitation can be whimsical and it is difficult to base a law on such a thing"; Legal 313).

5.2 DO YOU CONSIDER THAT THE OBJECTIVE IS TO CREATE LEGAL SAFEGUARDS RATHER THAN A COMPREHENSIVE PACKAGE OF RESPONSIBILITIES AND RIGHTS LIKE MARRIAGE?

In total, it was clear from 124 responses whether the respondent supported or opposed this proposal. A few remaining responses provided no clear view but added commentary of relevance. In contrast to the situation with previous issues, responses from both the individual respondent sector and those from organisations were similar in the degree of support expressed. A summary of views is provided in Table 4 below.

Table 4: Summary of views on the proposal to create legal safeguards rather than a comprehensive package of responsibilities and rights

NB. Percentages may not total 100% exactly due to rounding

Overall, 69% of those who expressed a view supported the proposition to create legal safeguards for cohabitants rather than a comprehensive package of responsibilities and rights. In contrast to the previous issue, little in the way of rationale was provided to support these views. The commentary which was provided is summarised below.

Reasons for Favouring the Proposal to Create Legal Safeguards rather than a Comprehensive Package of Responsibilities and Rights like Marriage

• Comprehensive package not appropriate for state of cohabitation (Legal 190, Char 258 - these are more appropriate for a relationship which has a formal "buy-in" and should not be acquired by default through cohabitation)
• Cohabitees should not be given the rights of married couples (Indiv 17, Legal 186)
• Cohabitees do not expect to be given comprehensive responsibilities and rights (Indiv 23)
• People cohabit for a wide range of reasons and providing safeguards rather than a comprehensive package enables them to pick from the menu of what is right for their situation (LG 59, Pol 104)
• Safeguards help to protect the children of cohabitees (Indiv 131, Misc 164)
• A comprehensive package might provide a challenge to the status of marriage (Misc 164)
• Safeguards are likely to contribute to positive and healthy relationships (Couns 139)
• Safeguards will provide security during times of high emotion (Indiv 10)
• Safeguards are preferable to a comprehensive package but they should be reasonably inclusive given the numbers of cohabitants in Scotland (Pol 104)

As before, respondents called for publicity to accompany the introduction of legal safeguards (LG 56, LG 59).

Reasons for Opposing the Proposal to Create Legal Safeguards rather than a Comprehensive Package of Responsibilities and Rights like Marriage

The few arguments outlined in opposition to the proposal were diverse in nature. However, a recurring theme was that even going as far as introducing safeguards put cohabitation on par with marriage (Faith 93, Indiv 97, Faith 114, Faith 195, Faith 322, Indiv 311). Another argument was on grounds of equality, that same sex couples did not have the option to marry, but should still be entitled to a comprehensive package of responsibilities and rights like married couples (Indiv 25, Indiv 48). Indeed, a few respondents commented that introducing such safeguards or comprehensive packages of responsibilities and rights would create an anomaly by excluding couples in civil partnerships (Indiv 99, Univ 122, Char 321).

Two respondents considered that the complexities and legal uncertainties which they perceived safeguards would create outweighed their usefulness (FM 82, Legal 323).

Another view was that the French experience of creating a civil pact (PACS) could be adopted which operates on a consensual basis and creates a comprehensive package of responsibilities and rights (Indiv 81).

A further suggestion was for the issue to be turned around and instead of creating legal safeguards, guidelines should be produced to inform people of the existing responsibilities and rights which come from living together (Faith 163).

Finally, one respondent stated simply that cohabitees need a comprehensive set of responsibilities and rights akin to marriage, and argued that they need to be able to access their rights with minimum disruption and without the undue stress of going to court (Char 209).

5.3 DO YOU AGREE THAT THERE SHOULD BE A PRESUMPTION OF EQUAL SHARES TO HOUSEHOLD GOODS AND MONEY/PROPERTY FROM HOUSEKEEPING ACQUIRED DURING THE PERIOD OF COHABITATION?

In total, it was clear from 146 responses whether the respondent supported or opposed this proposal with a further 1 response providing both support and opposition. A few remaining responses provided no clear view but added commentary of relevance. A difference emerged in the responses from the individual respondent sector compared with those from organisations in overall levels of support for the proposal. A summary of views is provided in Table 5 below.

Table 5: Summary of views on the proposal that there should be a presumption of equal shares to household goods and money/property from housekeeping acquired during the period of cohabitation

NB. Percentages may not total 100% exactly due to rounding

Overall, 6 out of 10 (60%) of those who provided a view were in favour of the proposal. Responses from individuals indicated that around half (54%) supported the plan, with almost three-quarters (71%) of organisations who responded also in favour.

A few respondents remarked that the wording of the proposal was odd in that the notion of "housekeeping" was outdated and had no legal meaning (Legal 186, Legal 190).

Reasons for Favouring the Proposal that there should be a Presumption of Equal Shares to Household Goods and Money/Property from Housekeeping acquired during the Period of Cohabitation

Just a few arguments were provided to support this overall majority view. Many respondents commented that this appeared to be a fair approach to each party and provided financial security especially where there were children involved (Char 90, Char 127, Misc 164, Faith 171).

Other views were that the proposal was consistent with cohabitees' expectations of what might constitute "common property" (Indiv 23, LG 63); and that such a plan might enable those whose relationship has ended to commence new lives in a better financial state (Indiv 10).

Comments were made that the plan was acceptable in general, so long as there was room built in for appeals and rebuttals of the presumption in certain circumstances (Legal 150, LG 185, Char 258). Consistent with this view was that of 2 respondents who suggested that exceptions to the rule could include inheritance and gifts given to one of the partners in the relationship (Indiv 39, Legal 316). One view was that the presumption should encompass debts in addition to goods, money and property (LG 56).

Reasons for Opposing the Proposal that there should be a Presumption of Equal Shares to Household Goods and Money/Property from Housekeeping acquired during the Period of Cohabitation

A variety of arguments were submitted in opposition to the proposal, each put forward by just a handful of respondents:

• Situation could be abused by a partner who had contributed less (Indiv 17, Indiv 31, Indiv 44, Faith 163, Indiv 264, Indiv 331)
• Should only get out of a relationship what you put in so that the other party cannot use you as a " financial stepping stone" (Indiv 331)
• People are free at present to make their own separate financial arrangements and this should continue (Indiv 18, Indiv 130, Misc 164)
• There are already legal options for cohabitees (Faith 93, Indiv 99, Faith 114)
• Too prescriptive/one size may not fit all cases (Indiv 25, Indiv 66, Indiv 69, Indiv 83, Faith 96, Indiv 157)
• The shares should be in proportion to individual investment where no children are involved (Indiv 47)
• People can marry to acquire such a presumption (Indiv 53, Faith 108, Indiv 134)
• Adds to complexities and takes away rights to live without legal ties (FM 82, Indiv 248)
• Could lead to disputes in courts and increased legal aid costs (Indiv 98, Legal 121)
• How can claims of shares be substantiated - will receipts be needed? (Misc 267)
• Will put people off cohabiting and lead to more single person households (Char 175)
• Will attract people to cohabitation and hinder the encouragement of marriage (Indiv 197)

5.4 DO YOU AGREE THAT A FORMER COHABITEE SHOULD HAVE THE RIGHT TO APPLY TO THE COURT FOR FINANCIAL PROVISION WHERE THEY HAVE SUFFERED UNDUE FINANCIAL HARDSHIP ON THE TERMINATION OF THEIR COHABITATION ARRANGEMENT?

In total, it was clear from 143 responses whether the respondent supported or opposed this proposal. A few remaining responses provided no clear view but added commentary of relevance. In general, responses from the individual respondent sector differed in level of support from those of organisations. A summary of views is provided in Table 6.

Table 6: Summary of views on the proposal that a former cohabitee should have the right to apply to the court for financial provision where they have suffered undue financial hardship on the termination of their cohabitation arrangement

NB. Percentages may not total 100% exactly due to rounding

Overall, 61% of those who expressed a view supported the proposition that a former cohabitee should have the right to apply to the court for financial provision where they have suffered undue financial hardship on the termination of their cohabitation arrangement. Responses from organisations showed stronger support in general than those from individual respondents, with 74% of the former supporting the plan compared with 55% of the latter.

Commentary of those in Favour of the Proposal that a Former Cohabitee should have the Right to Apply to the Court for Financial Provision where they have Suffered Undue Financial Hardship on the Termination of their Cohabitation Arrangement

Only a small number of reasons were outlined in favour of this plan, with most of the responses containing commentary largely about how the respondent thought that the proposal should operate in practice.

Reasons to support the proposal comprised:

• Court is the best setting for such decisions which may be complex (LG 59, Couns 124, Pol 266 - perhaps set of guiding principles could be constructed)
• Important in cases where there were children involved and especially where one partner has stayed at home to look after them (LG 56, Char 90, Char 127, Indiv 133, Legal 190, Char 317)
• To achieve equality of justice (Indiv 36, Indiv 66)
• To help to secure the financial future of ex-partners (Indiv 10)

Views on operation in practice

A few commentators stressed that although they supported the proposal in principle, they found what was proposed to be rather vague and lacking in detail. For example, one queried whether the provision concerned capital only or payment of alimony (LG 63). One respondent was concerned that the proposals appeared to suggest that cohabitees would be given some of the rights of married couples (Indiv 60); in contrast, another thought that the situation should be the same for former cohabitees and married couples (Pol 104).

The term "undue hardship" was the focus of a number of comments with the common view that "undue" may be too high a standard and after all, hardship was hardship whether "undue" or not (Indiv 2, Faith 171, Legal 186, Legal 316). In this instance and others relating to the issue of applying to the court for financial provision, several respondents suggested that the new proposal should take account of relevant sections of the Family Law (Scotland) Act 1985 in further shaping the proposal (Indiv 23, Indiv 26, Legal 186, Misc 326). Provisions S9(1)(b), S9 (1)(c) and S9(1)(d) were most commonly cited in this respect.

Again, the issue of qualifying years of cohabitation was raised, with some respondents stipulating periods of between 2 and 10 years before the right for financial provision should apply (Indiv 69, Char 71, Indiv 83, Indiv 84).

A few respondents provided support but emphasised that there should still be much discretion left to the courts in order to take account of the myriad of different situations and factors which could influence the outcome (Indiv 17, Indiv 25, Faith 163, Char 258). It was suggested that more judicial training in handling such cases would be appropriate (Char 258).

Another view was that any "financial cushion" awarded by the court should be time limited, particularly if there are no children involved (Indiv 23) or until an ex-partner recommences cohabitation (Indiv 43). One comment was that the right should not be granted in cases where the Child Support Agency was already placing financial demands on one partner (Indiv 1) or where any hardship had nothing to do with the cohabitation (Univ 122).

Commentary of those Opposing the Proposal that a Former Cohabitee should have the Right to Apply to the Court for Financial Provision where they have Suffered Undue Financial Hardship on the Termination of their Cohabitation Arrangement

Most of the comments received provided either principled or practical reasons as to why respondents opposed this plan. These are summarised below:

• There are already other legal options available (Faith 93, Faith 114)
• Gives the message that marriage does not matter (Indiv 132, Indiv 197)
• People already have the option of marrying to get rights (Indiv 53, Indiv 252)
• This is a "back door step" to giving cohabitees the benefits of marriage (Char 175)
• This would be for "whingers" (Indiv 20)
• Should be resolved out of court by the adult involved (Indiv 34)
• Court costs too much (Indiv 20)
• Should not expect the State to defend your rights (Indiv 134)
• Open to abuse by "gold diggers" (Indiv 116)

Once again, many respondent highlighted what they perceived to be the lack of clarity of what was proposed and what they predicted to be the complications and lengthy litigation which could arise (Indiv 47, FM 82, Indiv 157, Indiv 258, Indiv 311, Indiv 331, Indiv 333).

5.5 DO YOU AGREE THAT ON THE DEATH OF ONE PARTY TO A COHABITING PARTNERSHIP, THE SURVIVING COHABITEE SHOULD BE ABLE TO APPLY TO THE COURT FOR PROVISION OUT OF THE DECEASED'S ESTATE?

In total, it was clear from 147 responses whether the respondent supported or opposed this proposal. A few remaining responses provided no clear view but added commentary of relevance. In contrast to some of the previous issues, responses from the individual respondent sector were relatively similar in level of support to those from organisations. A summary of views is provided in Table 7 below.

Table 7: Summary of views on the proposal that on the death of one party to a cohabiting partnership, the surviving cohabitee should be able to apply to the court for provision out of the deceased's estate

NB. Percentages may not total 100% exactly due to rounding

Overall, 68% of those who expressed a view supported the proposition that on the death of one party to a cohabiting partnership, the surviving cohabitee should be able to apply to the court for provision out of the deceased's estate. Responses from organisations showed slightly stronger support in general than those from individual respondents, with 78% of the former supporting the plan compared with 63% of the latter.

Commentary of those in Favour of the Proposal that on the Death of One Party to a Cohabiting Partnership, the Surviving Cohabitee should be able to Apply to the Court for Provision out of the Deceased's Estate

Some of the commentary provided in relation to this proposal was consistent with that associated with the previous proposal. Respondents stipulated that there should be:

• Qualifying period of cohabitation of between 3 and 10 years (Indiv 1, Char 75, Indiv 83, Misc 267, Legal 316)
• Application only in cases/focusing on cases where children are involved (Indiv 57, Char 75, Char 90, Char 127, Indiv 141)
• Clearer guidelines constructed with more detail provided (Legal 186, Legal 190, Pol 266)
• Wide discretion for courts to take account of different circumstances (Indiv 2, LG 185, Legal 186, Legal 190, Indiv 331)

Several other comments of relevance were also submitted. Some respondents urged that the provision should apply only where there was no will left (LG 59, Indiv 83, Legal 186). Another view was that the provision should be enforced only where it was known that the deceased would have wanted this (Faith 163) and that more public information should be distributed to alert people to the issues (LG 56). It was suggested that any financial settlement should extend to include pension rights (Indiv 128, Indiv 129, Legal 186).

One key issue raised by several respondents was what they saw as a lack of clarity over how these rights would interact with existing legal rights and testamentary provisions which may, for example, give precedence to spouses of the deceased partner and their children (Indiv 2, Legal 186, Legal 316, Legal 323).

Commentary of those Opposing the Proposal that on the Death of One Party to a Cohabiting Partnership, the Surviving Cohabitee should be able to Apply to the Court for Provision out of the Deceased's Estate

Comments of those in opposition to the proposal continued largely on the theme of lack of clarity over rights. In particular, a few respondents remarked that the law could not be changed simply to accommodate the rights of cohabitees but, for fairness, would need to address the wider picture of succession rights in their entirety (Indiv 26, LG 63). Others stressed how the introduction of "discretion" where previously the law had been clear was a retrograde step which would create uncertainty for all parties involved (Indiv 23 - " palm tree justice", Indiv 26, Indiv 60, FM 82, Misc 220, Indiv 248, Legal 313, Legal 333). For some respondents such uncertainty was likely to lead to delays in getting the estate wound up (Indiv 60) and more pressure on the courts and Legal Aid system (Legal 313).

Several respondents remarked that cohabitees were well aware of the situation regarding succession (Indiv 311) and could make wills in order to avoid such complexities (Indiv 20, Indiv 53, Indiv 84, Indiv 154, Indiv 252). The proposal was seen as potentially discriminatory against spouses of cohabitees and others who inherit under existing succession rules (Indiv 134, Legal 313).

However, one voice of caution highlighted the predicament of a surviving cohabitee who may not be protected from sudden eviction from their home by the deceased cohabitee's blood family, with the suggestion made that such cohabitees should have some automatic rights in these situations (Char 209).

5.6 DO YOU AGREE THAT LEGAL SAFEGUARDS SHOULD BE FOR PEOPLE WHO LIVE TOGETHER AS A COUPLE?

In contrast to the preceding questions, this question appeared to confuse some respondents, with some documenting that they did not understand what was being asked and relatively fewer respondents in total offering any firm view and/or comment. The question appeared to confuse on 3 counts. Firstly, it addressed 2 different issues within the one statement (introducing legal safeguards and the notion of what constitutes a "couple"). Secondly, some respondents were unclear as to whether the question was indeed attempting to canvass views on the defining of a "couple" in this context. Thirdly, some respondents interpreted "couple" as specified in the consultation document as "people who live together as though husband and wife or who would be considered to be doing so but for the fact that they are of the same-sex". However, others have clearly viewed "couples" in the wider sense which encompasses other living arrangements such as siblings living together.

Whilst support or opposition for the proposal could be extracted from 113 responses, the statistical breakdown of views in Table 8 below should be treated with caution in the light of the apparent confusion created by this question. Against this strong caveat, there appeared to a significant majority view in favour of the proposal with 75% respondents overall expressing support.

Table 8: Summary of views on the proposal that legal safeguards should be for people who live together as a couple

NB. Percentages may not total 100% exactly due to rounding

NB. Please treat figures with caution (see paragraph above table)

It would be inappropriate to attempt to separate the few comments made concerning this issue into "supporting" and "opposing" on account of the confusion over the meaning of the question. Instead, comments are summarised altogether below.

Difficulties with Definitions

Some respondents urged that effort should be put into defining relevant terminology such as "couple" and "friendship" (Indiv 83, Faith 163, Legal 316). It was suggested that definitions in the Matrimonial Homes (Family Protection) (Scotland) Act 1981 may provide a helpful template (Legal 316).

Not Expected by Couples Cohabiting within Non-Sexual Relationship

It was argued that there were differences in expectations between different types of couples, and, for example, friends and siblings not sharing a sexual relationship did not expect any legal safeguards (Indiv 2, Indiv 20, Indiv 23, LG 59). One suggestion was that safeguards should be restricted to those within an intimate personal relationship (Univ 122, Couns 256).

Safeguards to be Extended to Other Types of Living Arrangement

Several respondents considered it appropriate to introduce such safeguards for siblings, friends, elderly parents living with their adult children and others living together (Couns 124, Indiv 136, LG 185, Indiv 157, Char 262, Char 321). One remark was that the time and emotional commitments made by people in these various living arrangements may be similar to those of partners within marriage or cohabiting arrangements (LG 185).

A small number of other comments were of relevance:

• Safeguards should come into play only after a qualifying cohabiting period (LG 56)
• Safeguards will increase complexities and take away cohabitees rights to live without legal ties (FM 82)
• There are already other legal options available (Faith 93, Faith 114)
• Who would make the decision that 2 people constituted "a couple"? (Indiv 95)
• The law should not be so prescriptive in this regard but needs to allow for some flexibility (Pol 104)
• People should get married and there would be no need for such safeguards (Indiv 134, Char 175)

5.7 ARE THERE ANY OTHER POINTS THAT YOU WOULD LIKE TO MAKE IN RELATION TO THE LAW AND COHABITING COUPLES IN SCOTLAND?

Many respondents took this opportunity to re-iterate points they had made earlier in relation to the previous specific questions on proposed legal rights for cohabitants. Three themes dominated:

Need for Greater Public Awareness of Rights of Cohabitants

A recurring message was that people required more education on the rights of cohabitants, with an acknowledgement that many people held misconceptions regarding, in particular, the existence of "common law marriage" rights. Some respondents considered that a lack of information had, indeed, created many of the difficulties described in the consultation paper, and provision of information may go far in addressing the difficulties outlined without having to resort to legal remedies. One novel idea was for the construction of legal templates which people could customise for their own use in order to set out in binding terms financial and other such agreements made by cohabitants (LG 56).

Should be Promoting Marriage and Not Cohabitation

Whilst many respondents simply stated that cohabitation undermined marriage and should not be facilitated in any way by legal safeguards, others, whilst opposing cohabitation, acknowledged that whilst it existed it was prudent to protect those involved through legislation.

Application of Safeguards to Same-Sex Cohabiting Couples

Many respondents from a variety of different sectors called for the proposals to apply equally to opposite-sex and same-sex couples.

In addition to these themes, a variety of other comments were documented by respondents. These are summarised below:

• Need to clarify definition of cohabitant (one suggestion was for " two people…living as parties in an enduring family relationship" as used in the English Adoption and Children Act 2002 (Indiv 2))
• There should be reduced rights for any partner who has been violent (Indiv 44)
• Safeguards for sibling and other "couples" should be considered (Indiv 46)
• There should be a focus on equality of rights irrespective of whether couples are married or not (LG 78)
• Consideration should be given to extending the possibility of registration of Civil Partnerships to heterosexual couples (Couns 216, Couns 259)

Finally, the view of one respondent was that although worthy, the intention to strike a balance between the legal vulnerability of cohabiting couples and not creating an unwieldy legal framework may be " more aspirational than practical" (Indiv 333).

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