COHABITATION BILL EXPLANATORY NOTES

Transcription

1 COHABITATION BILL EXPLANATORY NOTES INTRODUCTION 1. These explanatory notes have been prepared in order to assist the reader in understanding the Bill. 2. The notes are to be read in conjunction with the Cohabitation Bill. They are not a comprehensive description of the Bill. Where a section or part of a section does not seem to require any explanation or comment, none is given. SUMMARY 3. The Bill establishes a framework for financial provision on separation or death for those who live together as a couple outside marriage or civil partnership. It aims to put in place a limited mechanism to provide protection and obtain a fair outcome for each of the cohabitants on separation. It amends existing legislation allowing a surviving cohabitant to make claims on the death of the other. It also extends to cohabiting couples rights and benefits on death which are currently available to those in a marriage or civil partnership. 4. Part 1 defines the terms used by the Bill. In particular, it defines those cohabitants who fall within the scope of the Bill. 5. Part 2 establishes a right for eligible cohabitants to claim for financial provision on separation but provides that this can be limited or excluded by an opt-out agreement made between the cohabitants. A court granting an application for a financial settlement order must be guided by the prescribed principles: namely that each of the former cohabitants should be self-supporting as soon as reasonably practicable; and that an order should not exceed the applicant s reasonable needs. The court is not required to split the financial assets between the former cohabitants on an equal basis. There are strict limits on the length of time for which on-going periodical payments can be required. Part 2 aims to achieve a fair outcome between former cohabitants with minimal intervention by the courts. 6. Part 3 enables eligible cohabitants to take out life insurance for the benefit of the surviving cohabitant and any children they have together. It enables a surviving cohabitant to register the death of the other. It also amends the Inheritance (Provision for Family and Dependants) Act 1975 (c.63) and the Fatal Accidents Act 1976 (c.30) so as to take account of the provisions of the Bill and extend certain rights under each Act. BACKGROUND 7. In early 2006, the Scottish Parliament passed the Family Law (Scotland) Act 2006 which confers rights on cohabitants in Scotland including financial provision on separation. 8. The Law Commission published a consultation paper in May 2006 in relation to the law as it applies to cohabitants in England and Wales. This was 1

2 followed in July 2007 by the Law Commission s recommendations in a report called Cohabitation: The Financial Consequences of Relationship Breakdown (No. 307, Cm 7182). The report focussed on the financial consequences of the ending of cohabitating relationships by separation or death. It recommended that legislation should create a scheme entitling cohabiting couples to apply for financial relief on separation in certain circumstances together with reform of certain existing legislation applying on death. 9. The Government has neither rejected the Law Commission s recommendations nor stated that it has a principled objection to legislation in this area. But it has postponed making a decision about changing the law until after a future review of the impact of the Scottish legislation on cohabitation. 10. Resolution 1 and The Odysseus Trust 2 published in September 2008 a joint consultation paper Reforming the law for people who live together in order to inform the preparation of this Bill to address the current legal shortcomings. TERRITORIAL EXTENT 11. This Bill extends to England and Wales only. HUMAN RIGHTS 12. The Bill s promoter, Lord Lester of Herne Hill QC, believes that the provisions of the Bill are compatible with the Convention rights. 13. The Bill engages the right to respect for family life guaranteed by Article 8 of the Convention which encompasses the grant of private law financial remedies on separation and death. It seeks to promote respect for family life and the rights of children of cohabiting couples in the event of separation or death. In accordance with Article 14 of the Convention, the enjoyment of the rights contained in Article 8 must be secured without discrimination on the grounds of marital status. There is a difference of treatment between the protection given to cohabiting couples and the protection given to married couples. This difference is objectively and reasonably justifiable in order to respect the importance of marriage and civil partnership. 14. The Bill also engages the right to property protected by Article 1 of the First Protocol to the Convention. The scheme is not compulsory and the parties may make an opt-out agreement. However, where a court makes a financial settlement order in response to an application under the scheme, this would amount to an interference with the Convention right to the property. Such interference would be 1 Resolution, formerly known as the Solicitors Family Law Association, is an organisation of 5,000 family lawyers who believe in a constructive, non-confrontational approach to family law matters. Members encourage solutions that consider the needs of the whole family, in particular the best interests of children. Resolution also works for improvements to the family justice system. 2 The Odysseus Trust seeks to promote good governance in the interests of the governed, based upon plural democratic values, public accountability and the effective protection of human rights and fundamental freedoms. It seeks legislative, political and social reforms to achieve these objectives. The Trust supports the activities of Lord Lester of Herne Hill QC in his work as a member of the House of Lords. Anthony Lester is a human rights advocate who has campaigned for a Bill of Rights and for equality legislation in the United Kingdom for some 30 years. 2

3 objectively and reasonably justifiable as being in the public interest so that former cohabitants and their children should not be left without support in the event of death or relationship breakdown. The court would be bound, under the Human Rights Act 1998 (c.42) to read and give effect to the provisions of the Bill in accordance with the principle of proportionality. COMMENTARY ON CLAUSES PART 1 INTRODUCTORY Clause 1 - Overview 15. This clause summarises the content of the Bill. The protection conferred by the Bill applies to any two people who are cohabitants or former cohabitants, as defined in clauses 2 and 3. Most of the provisions in the Bill relate only to cases of separation and death. In addition, clauses 16 and 17 enable life insurance to be taken out by or for the benefit of the other cohabitant and for the benefit of any relevant children (defined in clause 4). Clauses 2 to 4 - Definitions 16. These clauses define cohabitant, former cohabitant and relevant child. 17. Clause 2 contains the definition of cohabitant. This imposes certain restrictions as to who is treated as a cohabitant for the purposes of the Bill. 18. Under subsection (1), two people who live together fall within the definition of cohabitant only if they live together as a couple. In addition, they must also meet both of the conditions set out in subsection (2) and (3). The first condition is that - (a) the couple have a child together, (b) there is a joint residence order in respect of a child in favour of the couple, or (c) they have lived together for a period of at least two years. The second condition excludes from the definition of cohabitant any couple who are married to each other, in a civil partnership with each other or within the prohibited degrees of relationship. This is defined in clause 5 and is explained further in paragraph 25 below. 19. If a couple satisfy the first condition within paragraph 18(a) or (b) above, it does not matter how long they have been living together as a couple. 20. As regards paragraph 18(a) above, the first condition will be satisfied if the couple are each regarded in law as a parent of the same child and the child is under 18 years old. Two people are regarded in law as being parents of a child in the following circumstances. The child was born to them both. This includes any child born before or after the couple began living together, and will also cover a child born after the 3

4 separation where the couple were expecting at the time of separation. For these purposes it is irrelevant whether the child is born before or after the date on which the Bill comes into force. The child was adopted by them together. Again, it will be irrelevant whether adoption was before or after the date on which the Bill comes into force. In cases involving assisted reproduction, each of the couple is treated as the mother, father or parent of a child, in accordance with Part 2 of the Human Fertilisation and Embryology Act 2008 (c. 22). 21. As regards paragraph 18(c) above, the first condition will be satisfied if two people, who do not satisfy the first condition within paragraph 18(a) or (b), have lived together as a couple for a continuous period of at least two years. In calculating how long two people have lived together as couple, regard must be had to subsection (4). Although no claim can be made in respect of a relationship which ended before the Bill s entry into force, the two year period may start before that date for people who are living together as a couple when the Bill comes into force. Subsection (4) also provides that any one or more temporary separations between two people are not to be taken as disrupting the continuity of the two-year period provided that the total length of separation, when the periods are combined, does not exceed 6 months. 22. Under clause 3, former cohabitants means any two people who were cohabitants in a relationship but who have ceased living together as a couple. Paragraph (b) of the clause recognises that two people may come within the definition even if they continue to share the same accommodation. It is not uncommon for a couple who have split up to continue to live together for a period, usually on account of the financial difficulties they would otherwise have in immediately meeting the expenses of running separate households. Paragraph (b) of the clause also specifies that a couple are not former cohabitants if they marry or enter into a civil partnership with each other. 23. In clause 4, a relevant child is any child under 18 years old who has both the cohabitants, or former cohabitants, as mother, father or parent. The circumstances set out in paragraph 20 above also apply here. 24. The definition of relevant child also includes any child in respect of whom a joint residence order in favour of both the cohabitants is in force, or in the case of former cohabitants, was in force during the period in which they lived together as a couple. Clause 5 - The prohibited degrees of relationship 25. This clause is to be read with clause 2(3)(b). It reflects the prohibited degrees of relationship which prevent two people from marrying or entering into a civil partnership. If two people who are living together as a couple are related to each other in a way that comes within the prohibited degrees of relationship, they will not be cohabitants for the purposes of the Bill. 26. Subsection (1) will exclude people with a close family relationship to each other (i.e. between a person and his or her parent or step-parent, grandparent or stepgrandparent, sister, brother, aunt or uncle). Subsection (1) also excludes relationships between an adopted person and any person who would, but for the adoption, have been a close family member. It also excludes relationships between an adopted person and his or her adoptive parents (or former adoptive parents). In relation to the wording in subsection (2), people who are descended from two common ancestors are 4

5 said to be of the whole blood. Those with only one common ancestor are said to be of the half blood. 27. There is a qualified exclusion in subsections (3) and (4) in respect of certain step-relationships which arise from a marriage or civil partnership but which have since been dissolved. This will exclude from the definition of cohabitant relationships which a person has with his or her former step-parent or former stepgrandparent or with any step-child or step-grandchild from a previous relationship. This exclusion does not apply if the conditions specified in subsection (4) are met. PART 2 FINANCIAL SETTLEMENT ORDERS Application Clause 6 - Application of Part This introduces Part 2. The Part creates a mechanism for cohabitants to make financial claims on separation. A former cohabitant may apply to the court for it to make a financial settlement order. If the court decides that is it just and equitable to make an order, it may make one or more of the orders set out in clause Clauses 7 to 11 and Schedule 1 provide for the making of applications for financial settlement orders and the contents of any order which the court decides to make. 30. Subsections (2) and (3) impose limits to the application of Part 2. The right to apply for a financial settlement order will not affect people who cease living together before clause 6 comes into force. It will also be possible for people to agree to opt-out of the mechanism established by Part 2 (see subsection (2)(b)). (This is subject to any variation or revocation of an opt out agreement (see subsection (3)(a) as explained in paragraphs 54 and 55 below). Finally, Part 2 will not apply where a cohabitation agreement or deed of trust entered into before commencement already deals with one or more particular matters (see subsection (2)(c)) unless that cohabitation agreement or deed of trust is varied or revoked under clause 15 as explained in paragraph 56 below. 31. Where Part 2 does apply, it will replace existing common law rules and equitable principles (see subsection (4)). Financial settlement orders Clause 7 - Application to court for a financial settlement order 32. This states that a former cohabitant can apply for a financial settlement order and requires the court to investigate the facts that are alleged by both the former cohabitant who makes the application and the other former cohabitant. These are known as, respectively, the applicant and the respondent. A person who makes an application must generally do so within 24 months of the date on which the former cohabitants cease living together as a couple. No more than one application can be made by a former cohabitant at the end of each relationship. Clause 8 - Circumstances in which a court may make a financial settlement order 33. This sets out the framework for the making of an order. 5

6 34. Before it can make an order, the court must first be satisfied that the applicant and respondent have ceased living together as a couple. The court can then make a financial settlement order only if it considers that it would be just and equitable to do so. 35. The court s discretion as to what provision to include in the order is restricted in a number of ways: The court must aim to give effect to two underlying principles (see subsection (3)). First, the applicant and respondent should be self-supporting as soon as reasonably practicable. Second, any award made should not exceed the applicant s reasonable needs. Although the court may require the respondent to make periodical payments or to secure such payments by means of a charge on property or other arrangement, the maximum period of such payments is generally three years. The court may order a longer period only in certain limited circumstances (see clause 10(3) and (4)). 36. In reaching a view as to whether or not to make an order, subsection (2) requires the court to consider all the circumstances, taking into account a number of factors. The factors to be considered are listed in clause 9 and first consideration has to be given to the welfare of any relevant children of the former cohabitants (within the meaning of clause 4(1)(b)). The court, must, therefore, have particular regard to the interests of the couple s children, for example their housing needs. Available resources would first be allocated to settling any financial claims in respect of children which are made under the Children Act 1989(c.41). 37. There is to be no presumption of equal sharing of property between the applicant and respondent. 38. The provisions that can be included in a financial settlement order, or that can otherwise be made in connection with an application for such an order, are those set out in clauses 10 and 11 and Schedule 1. Clause 9 - Matters to be considered in determining an application 39. This lists the matters that the court is to consider when deciding whether to make a financial settlement order. The applicant and the respondent are referred to in the clause as the parties. 40. In addition to the welfare of any relevant child (see paragraph 36 above), the matters to be considered by the court include the following. The nature and duration of the relationship (including the degree of dependency or interdependency). This will allow the court to take account of the fact that the couple did not choose to marry or enter into a civil partnership and any reasons they might have had for not doing so. The contributions each party has made to the relationship in financial terms or by caring for relevant children or looking after the home. This will include future contributions, in particular the care of the parties children following separation. The scope for each partner to obtain paid work, including the cost of any child care that might be needed to facilitate a partner going out to work. This will be 6

7 particularly relevant in light of the underlying principle that the parties should be self-supporting as soon as reasonably practicable (see paragraph 35 above). Any written agreement indicating the couple s intentions. 41. The relative financial positions of the parties must also be assessed, as well as their current and future obligations. Specific attention is drawn by clause 9(e) and (f) to any economic imbalance that might have resulted from the relationship. Economic advantage may be capital, income or earning capacity that has been acquired, retained or enhanced. Economic disadvantage relates to a present or future loss. It might include a reduction in savings further to expenditure or earnings lost during the relationship, lost future earnings or the future cost of paid child care. Clauses 10 and 11 - Financial settlement orders 42. These clauses set out the available orders and the restrictions on exercise of such orders. In broad terms, clause 10(1) provides for adjustments to be made to the economic resources available to each of the former cohabitants with a view to achieving a balance between the parties that the court considers to be more just and equitable. However, this is subject to the underlying principles outlined in paragraph 35 above. 43. Under clause 10(2), any payment or payments which a former cohabitant is required to make to the other may include provision for child care costs. 44. Periodical payments (maintenance) are available as between the parties (financial orders for the benefit of children will continue to be dealt with under the existing law). Clause 10(3) restricts periodical payments to a 3 year maximum. This does not apply if the court considers that a longer period of payments is needed in order to avoid exceptional hardship or in order to cover child care costs required to enable the former cohabitant caring for a relevant child to obtain and/or remain in employment (see clause 10(4)). 45. Clause 10(5) and (6) set out the circumstances in which any order which has been made for periodical payments to a former cohabitant will terminate. This happens automatically if either of the former cohabitants dies or if the former cohabitant receiving the periodical payments marries or enters a civil partnership. In addition, the court is required to terminate an order for periodical payments if it is satisfied that a former cohabitant receiving the payments has started living as a couple with someone else. 46. Clause 11(1) and (2) provide for the court to be able to vary or revoke a continuing financial settlement order (i.e. in relation to interim maintenance, periodical payments or lump sum payments by instalments) on an application made to it by one of the former cohabitants. The court may, under clause 11(3), also include provision in a financial settlement order prohibiting either of the former cohabitants from making an application under the Inheritance (Provision for Family and Dependants) Act 1975(c.63). This would apply on the death of their former cohabitant and would mean that they could not make an application, as a dependant of the deceased, for reasonable financial provision from the deceased s estate. 47. Clause 11(4) introduces Schedule 1 to the Bill which contains further provision for or in connection with financial settlement orders. 7

8 Opt-out agreements Clause 12 - Agreeing to opt-out of financial settlement orders 48. Two people who are living together or who propose to do so may decide that they do not want to have the right to seek a financial settlement order that is conferred by Part 2 of the Bill. In order to give effect to that decision they are required to enter into an opt-out agreement. Such agreements may be entered into immediately after this clause comes into force (subsection (3) and clause 25(1)(b)) which will be prior to the coming into force of the other provisions in Part 2 (save for clause 13). This will allow cohabitants to opt out during a lead in period between the legislation being enacted and implementation of Part 2. An agreement may be made so as to apply in all circumstances or only in the particular circumstances set out in the agreement. 49. When a couple enters into an opt-out agreement, they do not have to qualify as cohabitants within the meaning of the Bill (see paragraphs 17 to 21 above). Each of them must, however, be aged 16 or more (subsections (4) and (5)). 50. In order for the opt-out agreement to be valid, certain formalities and requirements specified in clause 12 must be complied with. These requirements include giving confirmation that the parties each agree to the effect of the opt-out agreement. Each person must have obtained independent legal advice from a practising solicitor or barrister in England and Wales before signing the agreement. This is to ensure that both parties know what effect the opt-out agreement will have and, in particular, the rights they will be giving up if they decide to separate once they have made the agreement. 51. It is possible for regulations to prescribe an opt-out agreement form meeting the requirements in clause 12. This will be for use on a non-mandatory basis. Clause 13 - Variation or revocation by the parties of opt-out agreements 52. Two people who have entered into an opt-out agreement may subsequently decide to vary or revoke it. Any variation or revocation must comply with similar formalities to those required when making an opt-out agreement. Again, independent legal advice is required to ensure that the parties understand what effect the action they propose to take will have. Clause 14 - Variation or revocation by the court of opt-out agreements 53. It is also possible for any person who has entered into an opt-out agreement to apply to the court for an order varying or revoking an opt-out agreement if an application is made for a financial settlement order under clause 6 (by way of a concurrent application or subsequent application before the court decides whether or not to make a financial settlement order). However the circumstances in which the court can make such an order are strictly limited. The power can be exercised only if the court considers the opt-out agreement to be manifestly unfair to the applicant. And this must be on account of either- the circumstances in which the agreement was entered into (for example, if the court considers that one of the parties entered into the agreement under duress), or an unforeseen change in the circumstances of either of the parties. 8

9 Cohabitation agreements or deeds of trust Clause 15 - Variation or revocation by the court of cohabitation agreements or deeds of trust 54. The effect of clause 15 is that a cohabitation agreement or deed of trust entered into before the commencement of clause 6 will be binding on the parties to the agreement (and third parties) unless and until one party makes an application under Part 2 and either party successfully asks the court to disapply the cohabitation agreement or deed of trust when making a financial settlement order. PART 3 PROTECTIONS CONNECTED WITH INSURANCE AND DEATH Clause 16 Insurable interest in the life of the other cohabitant 55. This provides that cohabitants in a relationship will be presumed to have an interest in each other s lives for the purposes of section 1 of the Life Assurance Act 1774 (c.48) and that that interest shall be unlimited. This will allow a cohabitant to take out insurance on the life of the other cohabitant. Clause 17 Assurance policy for benefit of other cohabitant 56. This extends the application of section 11 of the Married Women s Property Act 1882 (c.75) to cohabitants in a relationship. As a result, where a cohabitant takes out a life insurance policy to provide for the other cohabitant or for any children they have together, the money payable under the policy will not form part of the estate of the insured. 57. This will mean that a cohabitant will be able to insure his or her own life so that the policy will be payable directly to the person named as beneficiary of the policy (i.e. the other cohabitant and/or their children) and without tax becoming payable. Clause 18 Registering the death of a cohabitant 58. Only certain persons are entitled to register the death of another under the terms of the Births and Deaths Registration Act 1953(c.20). This clause will have the effect that a cohabitant in a relationship will be one of those permitted to give information to a registrar of births and deaths concerning the death of the other cohabitant. Clause 19 Further provision in connection with the death of a cohabitant 59. This introduces Schedule 2. The amendments made by Schedule 2 operate on provisions of the Inheritance (Provision for Family and Dependants) Act 1975 (c.63) and the Fatal Accidents Act 1976 (c.30). These provisions already provide rights of action for any person who, immediately before the deceased s death, had been living with the deceased for two years or more. The amendments bring those provisions into line with the general approach taken in this Bill and extend certain rights under each Act which are not currently available. 9

10 PART 4 MISCELLANEOUS AND GENERAL Clause 21 Jurisdiction of the courts 60. The High Court and the county court will have jurisdiction to determine applications made under this Bill. The clause also provides for the Lord Chancellor to make detailed provision by order specifying which of the two courts is appropriate for starting proceedings in particular cases. It is envisaged that applications under Part 2 will be determined in the High Court Family Division or in a county court designated to deal with family business under the Matrimonial and Family Proceedings Act 1984 (c. 42). Clauses 22 and 23 Power to make transitional and consequential provision etc 61. These enable the Lord Chancellor to make orders to give effect to any provision under the Act. Any such order will be subject to the affirmative resolution procedure. 62. The powers to which clause 23 will apply are opt out agreements in prescribed form (see clause 12(10)), jurisdiction of courts (see clause 21), power to make consequential amendments to give effect to the Act and the detailed provisions about financial settlement orders in Part 3 of Schedule 1. Clause 25 Commencement 63. Clauses 12 and 13 as to the making, variation or revocation of opt out agreements by the parties, and the whole of Part 4 and any relevant powers will enter into force on the enactment of the Bill. SCHEDULES Schedule 1 Financial settlement on ceasing to live together 64. Schedule 1 contains further provision as to the requirements that can be imposed by the court in connection with financial settlement orders. 65. Part 1 of Schedule 1 provides that, if the court decides to make a financial settlement order, it may require a person to take any of the steps listed in paragraphs 3 to 6 of Schedule Paragraph 3 provides that if the court decides to require a payment to be made from one former cohabitant to the other, it may make an order for a lump sum or for periodical payments. Any order for periodical payments must be limited to a maximum 3 year period except where the court has specified a longer period in exercise of its powers under clause 10(4). The court can order periodical payments to be secured by means of a charge or other arrangement. Similarly a court may order a lump sum to be paid by instalments and for the instalments to be secured by a charge on property. 67. Paragraph 4 allows for property adjustment orders to be made. For example, the court may require one former cohabitant to transfer a particular property to the other or to make a settlement of a property for the benefit of the other. 10

11 68. Paragraph 5 provides for orders for sale of specified property in which either or both of the former cohabitants have a beneficial interest. The sale of property order can contain supplementary or consequential provisions, in particular it can include provision for payments out of the proceeds of the sale or for the property to be offered for sale to a particular person or group of people. There is also provision for third parties with interests in the property to make representations. 69. Paragraph 6 allows the court to make an order for pension sharing so that both of the former cohabitants share the benefit of the value of a pension that had previously been held by only one of them. The value of the pension is effectively split and the court specifies the amount (in percentage terms) transferred to the other former cohabitant. The court can apportion any charge made by the person responsible for a pension arrangement. 70. In any case where an application has been made for a financial settlement order, paragraph 7 allows the court to require one former cohabitant to make an interim payment or payments to the other before the application is determined. This may be appropriate where there is immediate need of financial assistance. 71. Part 2 of Schedule 1 makes provision for former cohabitants to reach agreement on the terms of the financial settlement between them and, on an application to court by one of the parties, for such agreements to be altered during the lives of the former cohabitants. There is also provision, further to the making of a financial settlement order application under Part 2 for the court to make an order (a consent order) on terms as set out by the former cohabitants and presented to the court. 72. Part 3 of Schedule 1 contains certain provision in connection with the enforcement of financial settlement orders or orders for interim payments referred to in paragraph 70 above. 73. Paragraphs 14 and 15 make provision for the court to make orders overturning transactions carried out in an attempt to avoid any provision made by a financial settlement order. 74. Paragraph 16 deals with arrears and repayments and provides that arrears older than 12 months cannot be enforced without the leave of the court. 75. Paragraph 17 enables the Lord Chancellor to make by order further detailed provision for, and in connection with, applications for a financial settlement order which is made under clause 7 of the Bill. Schedule 2 Amendments: financial provision on a cohabitant s death Inheritance (Provision for Family and Dependants) Act 1975 (c. 63) 76. Part 1 of Schedule 2 amends provisions of the Inheritance (Provision for Family and Dependants) Act 1975 which already apply to certain persons who were living with the deceased as a couple at the date of death (see paragraph 59 above). 77. Paragraph 2 of Schedule 2 amends section 1 of the 1975 Act by amending the provisions which already confer on cohabitants a right to bring an action seeking reasonable financial provision from the deceased s estate. These amendments will ensure that the right of action becomes exercisable by cohabitants, as defined in this Bill. There is also an amendment inserting section 1(2)(ab) so that the reasonable 11

12 financial provision that can be awarded is not limited to the maintenance of the surviving cohabitant. 78. Paragraph 3 of Schedule 2 amends section 2 of the 1975 Act. It extends the court s powers so as to enable it to make an order varying any settlement which was made on a cohabitant in a relationship, either when the cohabitants were living together as a couple, or in anticipation of their doing so. 79. Paragraph 4 of Schedule 2 amends section 3 of the 1975 Act. It amends the matters that the court has to take into account when considering an application for reasonable financial provision from the deceased s estate which is made by a cohabitant. The Bill requires the court to consider, inter alia, the length of the period during which they lived together as a couple and, broadly speaking (but not as the determining factor), what the applicant might have received had an application been made under clause 7 of the Bill for a financial settlement order on the cohabitants ceasing to live together for a reason other than death. 80. Paragraph 5 of Schedule 2 inserts a new section 14B of the 1975 Act. This confers on former cohabitants a right to make an application for reasonable financial provision. This is only exercisable before the end of the 2 year period that begins when the former cohabitant ceased living with the deceased and only if no application for a financial settlement order has been made or determined before the date of the death. The court will have regard to the fact, inter alia, that the applicant was no longer living together as a couple with the deceased when considering an application. Any award made on such an application is restricted to reasonable financial provision for the maintenance of the applicant. 81. As indicated in paragraph 46 above, a court may include in a financial settlement order a provision prohibiting a former cohabitant from making an application under the 1975 Act for reasonable financial provision. Paragraph 6 of Schedule 2 inserts a new section 15ZA of the 1975 so as to ensure that, where any prohibition to that effect has been included in a financial settlement order, the court does not entertain an application under the 1975 Act. Fatal Accidents Act 1976 (c. 30) 82. Part 2 of Schedule 2 amends provisions of the Fatal Accidents Act 1976 which already apply to certain persons who were living with the deceased as a couple at the date of death (see paragraph 59 above). 83. Paragraph 9 of Schedule 2 amends section 1. It ensures that, where a cohabitant s death is caused by the wrongful act, neglect or default of another person, a cohabitant, as defined by the Bill, will be able to claim compensation under the Act. 84. Paragraph 10 amends section 1A so as to confer on a surviving cohabitant the right to include in their claim under the Act a claim for bereavement damages. 85. Paragraph 11 contains consequential provision related to these changes. 12