IN THE United States they call it palimony. In England there is no name for it because it doesn’t exist . . . in Scotland, New Zealand, most of Australia and in assorted countries besides they have palimony already. The Law Commission favours its introduction in England and Wales and we have until Saturday to tell it whether we want the right to claim against or be sued by our former partners, even when not married. On Sunday the consultation phase ends and the Law Commission will then decide on its final recommendations to Parliament.

So why is the commission considering financial settlements for unmarried partners? Ask Mrs Burns. She lived with Mr Burns for 20 years. They never married (though she took his surname) but she raised their children, decorated the home and supported his career. When the children were older she worked part-time, paid the rates and other outgoings. Mr Burns paid the mortgage and the house was in his name but they were no different from scores of married couples and when the relationship broke down Mrs Burns wanted a share of the family home to help her to find accommodation of her own.

In a landmark decision in 1983 the Court of Appeal rejected her claim and Mrs Burns was given nothing. Her failure to contribute hard cash to the purchase of the house or to the mortgage was fatal. Meanwhile, her contributions as full-time mother, unpaid decorator and occasional bill-payer counted for precisely nothing.

Since then, the Court of Appeal has consistently regarded itself as unable to improve the law, notwithstanding that changing demographics are creating more and more cases such as Burns. Marriage rates have fallen sharply and now more than two million unmarried couples cohabit with well over a million children dependent upon them. Indeed, the number of children born to unmarried parents has risen from 12 per cent in 1980 to nearly 50 per cent of all children born today. And despite their vulnerability under the current law, a recent survey shows that more than 50 per cent of people believe that just living with someone for long enough automatically gives them rights — the myth of the common law spouse. How hopelessly wrong they are — just ask Mrs Burns.

Here are a few of the headline proposals: first, it is an opt-out scheme, meaning that rights and obligations will be imposed automatically on cohabiting couples and, if they don’t want this, both partners must sign an opt-out document — one signature won’t count. Fortunately, if your partner is reluctant you will be able to unilaterally opt out by dumping him or her before the proposals hit the statute books. In New Zealand, as the February 2002 date for the palimony law grew ever-closer, many relationships were ended by the richer party to prevent future claims. This has already started in England and Wales and the scheme hasn’t even got to Parliament yet.

Secondly, and crucially, it will not work like divorce. Divorcing spouses have an automatic right to claim and can expect to share equally everything built up over the marriage. The Law Commission scheme would be different: only where an unmarried couple have had children together will the partners have an automatic right to claim. Childless couples will be entitled to claim only if they have cohabited and if the relationship has affected them economically; for example, by one partner giving up a career to support the other career or by working unpaid in the other’s business, thus making it profitable. Childless couples who both begin and end their relationship with their careers intact cannot expect to claim under the new scheme even if one of them has higher earnings or greater savings.

Thirdly, there may be a qualifying period of living together before childless couples can claim. The public’s view on this is something on which the commission wants feedback. A time limit may help to weed out weak cases but is it right to shut out parties who have suffered economic disadvantage just because they haven’t lived together for a set period?

There are more fundamental matters on which the Law Commission seeks views — not least whether there should be a new scheme at all. Mrs Burns may feel that the case for reform is overwhelming, but there are powerful arguments against the erosion of freedom that it imposes. After all, we already have an established scheme that couples can opt into if they want to create mutual rights and obligations — it’s called marriage. Opponents of the commission scheme, including the Archbishop of Canterbury, fear that imposing rights and duties on cohabiting couples — a kind of marriage-lite — will cause fewer couples to marry. Advocates of the scheme point to the growing numbers who already live together without marrying, many of whom unquestionably get a raw deal under the law. Resolution, the 500-strong association of family lawyers, are in favour of new protections: they say that these would not undermine marriage. Cohabiting couples should not have the same rights as married couples but, they argue, should take some responsibility for each other’s welfare when they part.

Either way, people should know their legal rights; and the myth of the common law wife be consigned to history.

www.lawcom.gov.uk/cohabitation.htm

The author is a specialist family law barrister and member of the Legal Advisory Group to the Law Commission Cohabitation Project

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