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Hollande Affair Thrusts Rights of Cohabitees Into the Limelight

21/01/2014 15:44 GMT | Updated 23/03/2014 09:59 GMT

The recent media furore surrounding François Hollande's alleged affair with the actress Julie Gayet has ignited debate in newspapers and on social media about the difference between British and French attitudes to privacy, affairs and matters of the heart.

It revives the old stereotype of the successful, charming French lothario (or in this case the far less romantic figure of a portly man on a scooter sneaking away to his mistress) having a string of affairs whilst his wife or partner is forced to emit a Gallic shrug of indifference.

However, in addition to the obvious differences in international attitudes towards extra-marital activities, the story also raises a complex set of legal questions. François Hollande is the first French president to move into the Elysee palace unmarried and with a cohabiting partner. Under French and English law cohabitees do not have the same rights as married couples. The arrangement does not open up the right for maintenance from either side if the relationship breaks down nor provide for a division of the family's wealth.

François Hollande now has a previous partner with whom he cohabited for 30 years and has four children, a current partner he is living with in the presidential palace and an alleged mistress. His personal life is complex and raised raises important questions about the status of cohabitees in law.

In England, disputes between cohabitees over property are solved by complex, out-dated trust law concepts defined by legislation from the 1920s. In France, progress was made in 1999 with the introduction of PACS, a formal agreement where two adults of the same sex or opposite sex can enter into a legally binding agreement that is ratified by a court clerk and can be simply terminated by a letter from one party to another.

The freedom that PACS provides in France is for the parties to make their own decisions about contribution levels and the division of their assets. Interestingly, if one party dies, the other will be treated as a 'spouse' by the law. Though, without entering into this agreement, there is little protection for parties.

England does not offer the same protection through a contract if one party dies or there is separation. However, a new bill currently going through parliament would change this, giving similar rights to cohabitees as divorcing couples. Currently, cohabitation agreements offer some protection but around half of the population still believe in the myth of a common law marriage (It has, in fact, never existed in England). With cohabiting couples the fastest growing demographic, awareness of this issue is vitally important.

Under the new bill parties would be able to make an application for a financial settlement if they have cohabited for two years or have children together. There are still issues with the bill's definition of when cohabitation begins for a couple as it is rarely as clear-cut as the beginning of a marriage. Whilst providing certainty to cohabitees and greater clarity as to their rights should be welcomed, it is overly paternalistic for the legislature to crow bar cohabiting relationships into a greater level of commitment. Cohabitation is increasing because more people are choosing to cohabit, and not to marry.

Choice is key here. If couples want all the rights and obligation that come with being married, they can do just that; marry. It should not be for Parliament to legislate them into a demi- marriage.

It may seem strange that a scandal surrounding a French politician would thrust the issue of the rights of cohabitees into the limelight but it undoubtedly has.