Cohabitation rights: three cheers for Lord Justice Wall!

sir nicholas wallLord Justice Wall, the President of the Family Division, has said that cohabiting couples who split up should have legal rights to a possible share of property and money.

In an interview with Frances Gibb of The Times and published today, Sir Nicholas Wall notes:

“Women cohabitees, in particular, are severely disadvantaged by being unable to claim maintenance and having their property rights determined by the conventional laws of trusts.”

He went on to add:

“The majority of people don’t understand that living together does not give them any financial protection should the relationship end…which leaves countless people vulnerable.”

It is a controversial subject but my own views on it, which are already known to regular readers, are summarised in the following posts:

Cohabitation: know your rights and the law

Cohabitation and our cowardly lawmakers

Why I disagree with Baroness Deech and her views on cohabitation

In 2007 I was a member of the Legal Advisory Group to the Law Commission, which called upon the Government to give new legal rights to cohabiting couples. Sadly these recommendations appear to have fallen upon deaf ears. Years later, there is still no sign of law to cover cohabitation breakdown. During this time, the number of cohabiting couples has continued to rise and the common law marriage myth has continued to prevail. According to The Times, a sixth of couples in Britain now live together and do not marry – but more than half believe (wrongly) that they have legal rights as “common law” spouses.

I have previously described Sir Nicholas Wall as the herald of family law reform. Is he a harbinger for cohabitation rights? At the very least, the backing of the most senior judge in England and Wales is set to “fuel the case for reform”. It’s welcome, given the stalled progress in government so far. We are told by the Ministry of Justice that an announcement will be made by the Government in due course. Saying what, I wonder? Will they fall for the extreme anti-cohabitation and pro-marriage views, which blindly ignore the genuine hardship encountered by those cohabitants who do not have the protection of family law and are left in dire straits?

The opposition to Sir Nicholas Wall’s views today in the media is focused firmly on the specious argument that to introduce cohabitation law would devalue marriage. I appeared on BBC Radio Five Live to counter these arguments against a representative of the right wing Centre for Social Justice. Later on Channel 4 News I watched Dr Catherine Hakim of the LSE, who is also opposed to such legislation on what again seemed to me to be purely intellectual grounds. Sadly, she didn’t seem to have a clue about real-life families. That is unsurprising, given she isn’t a lawyer who has to turn away distressed people without a remedy in law for the hardship they have to endure, who are homeless, penniless and thrown onto the State, perhaps after a lifetime’s relationship which has ended in turmoil.

Those with such uncompromising, stridently expressed views completely miss the point. In the 21st Century, with so many social changes having taken place, the argument is no longer about being married or not. It is not about devaluing marriage. It’s about legal regulation of families, all of them. There should be no lacunae in our law.

We no longer have two children, two parent families with non-working mothers and working fathers as the norm. There are too many permutations to list.

Family law should regulate the family, irrespective of marriage. Married families are but a small percentage of today’s families. Family law is surely designed to protect individuals within the family, to ensure fairness for the weaker party and the children.  Marital status is irrelevant.

Like it or not, there is a very large elephant in the room. Cohabitation is here to stay as part of society’s multi-faceted family and, whether or not we wring our hands with genuine regret at the demise of the simple married family, our law must cover all the families in this country. This is not least for the sake of the children, who should never be regarded in law as second class. We simply can’t have our judges dealing only with decreasing numbers of married families, unable to deal with growing numbers of unmarried families of all different types, sizes, hues and orientations.

So all credit to you, Sir Nicholas: all those people who have a right-minded concern for those in real need of social justice are rooting for you! Keep up your much-admired efforts, and please continue to demonstrate how our judiciary have a very real social conscience – despite all the hand-wringing from those who really should know better.

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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18 comments

sadbutmadlad - February 7, 2011 at 1:48pm

I would argue that there is no need for a new cohabitation law. Civil registration of marraige covers all the angles already. And civil partnership extended to different sex couples would also work.

If couples can’t be arsed to get married then how are you going to get them to bother about co-habitation rights. Or are these going to be automatic – in which case when does a co-habitation become legal? After 1 one night stand or after 1 year and 1 day.

Basically a co-habitation law is creating what most think is common law marriage.

I argue more about the case over at http://www.annaraccoon.com/reflections/civil-cohabitation/

Saskia Zimmerman - February 7, 2011 at 7:57pm

This makes me really angry. Firstly, if you want the same rights as married couples, GET MARRIED. Not getting married is a choice!

I say this as a 46 year old woman who has never been married, I have cohabited for short periods (1-2 years) twice before, but live apart from my current boyfriend (of more than five years). He is very keen to live together and get married. I am not, I prefer living alone. However, I love him and would take “the risk” of moving together. I am however not prepared to take the risk of losing half my assets should things really not work out. I own a property worth almost a Million Pounds (entirely acquired through my own hard work), he has nothing.

I am totally committed to him in the sense that I do want to spend the rest of my life with him, but I also want to protect myself. I think that’s only sensible.

Happy Now - February 8, 2011 at 11:52am

I was with someone for 7 years, cohabiting for 5. In that time he transformed from a responsible man with a good career and his own flat to an unemployted alcoholic with a habit of buying useless expensive gadgets on-line with my credit card. I finished the relationship owing more than a year’s salary as I had been borrowing to pay the rent and bills.
I had made the conscious decision not to marry him until he got help for his addicition to alcohol and found a job. I did this because I knew it would keep me protected. It makes me really angry that this proposed change would have limited my choice to “Loose all your rights” or “give up on this person at the first hurdle”. I’m glad that I had the option to at least try to make a go of things, sadly he never faced up to his problems, but at least we had the chance to make it work.

Rhodie - February 13, 2011 at 8:47pm

If you want marriage rights, get married – it’s that simple.

I have been living with someone for just under 10 years. I am female, I work full-time, I own the house, I own everything in it, I pay all the bills and have no children. My cohabitee, has never worked while I have been with him and he owns a house that he gets rent from which helps to pay his ex-wife maintenance and the odd things for his children. He also gets help from his parents. He doesn’t pay anything towards the bills.

There is NO ways that I would want to be put in the situation that I have to give him part of my capital if we split up. I am seriously worried that the law will change – if it does, I would have to ask him to leave in order to protect myself.

Lukey - March 25, 2011 at 7:44pm

Most people cohabit and don’t get married and cohabit because they don’t want the entanglement (legal & otherwise) of getting married – the idea of bringing in a law that means a persons assets can be removed from them and financial obligations created without a marriage contract or indeed any kind of contract is obscene.

If the problem is that people don’t understqand that ‘common-law life’ (or husband) doesn’t exist then the obvious solution is to advertise that reality and educate in the schools – not dictate that people are financially obligated by default on the whim of a a judge !

I suggest Lord Justice Wall is looking to create more work for his profession – and messy expensive work it will be too.

Chambers - April 16, 2011 at 5:45pm

More highly paid work for lawyers.

That is the only reason why the Judiciary and lawyers are supportive of cohabitation rights.

Hardly a surprise…..

Marilyn Stowe - April 16, 2011 at 9:53pm

Chambers.
Law regulates society. Law should cover the whole of society. There shouldn’t be a void.
What that law should be and how it is applied I would suggest is a different argument.
I have spent my career unafraid to tackle injustice as I perceive it. I regard the lack of cohabitation law as one of the greatest injustices in our society today because I have seen the unfairness the lack of law produces. Yes you can argue it is ‘the fault’ of those who enter those family relationships. But family law, in society regulates the end of family relationships, except cohabitants.
Regards
Marilyn

Anne - June 30, 2011 at 1:02am

My partner of 8 years, 2 children and 2 mortgages, met someone else on a night out & is leaving me. I gave up a well paid job to be a stay at home mum nearly 3 years ago. It was a decision I was really pleased about as we both thought it would be beneficial for us all. With child care costs i’d have been down about £1000 per year until my children started school.
Now he is leaving, we have to sell our house. He earns a very good wage and can go and buy another property straight away. The children and I will have to live in rented accommodation. I will be lucky to get a housing association or council house, as when i manage to get a job, the rent will be more affordable and it will offer us more stability (in a private rented place we could have to move every 6 months). I also have no deposit to put down for a rented house, their father is not obliged to help me in any way, so for now I am stuck in this house whilst he goes out with his new girlfriend when ever he wants.

If we had been married (he didn’t want too and i was quite trusting about it all) the children and I would have been allowed to stay in our family home until they were 18. Is this really fair for the children?

Marilyn Stowe - June 30, 2011 at 10:15am

Hello Anne,

No, I dont think this is fair at all. I think you should go and see a solicitor and see if there is some way you can remain in your home with your children, by making an application under Schedule 1 of the Children Act. You can also apply for a lump sum, perhaps to put towards a new home if it isnt possible to stay in your present home, and there is also maintenance for the children to consider, and in appropriate cases , a potential for a Carer’s Allowance for you payable by your former partner.

Best Wishes,

Marilyn

Louisa - July 13, 2011 at 8:17am

I have been in a relationship for 22 years with one daughter , have also worked alongside my partner for the last 15 years and created a very successful business as well as running the home and being both parents to my child whilst playing the supporting role and gradually losing my identity and solely reliant on my partner for everything. The relationship has been volatile , abusive and my daughter aged twelve and I are ready to leave but are not on any of the mortgages my partner holds on several property’s purchased over the years and will find ourselves homeless.

Marilyn Stowe - July 13, 2011 at 8:22pm

Hi Louisa
Dont despair please. Take legal advice from a specialist who deals with cohabitation issues. You may still have a potential claim for yourself and an additional claim for your daughter in terms of housing and of course, child support. You need to attend the lawyer with full details and if possible, evidence, of all your contributions into this relationship, financial and non financial, what was agreed between you both if anything in relation to ownership of the properties, approximate values of the properties and the outstanding amount on the mortgages,(although if you don’t know, don’t worry, don’t snoop, your lawyer will find out if the case goes forward) also the needs of you and your daughter in terms of housing and income, and if relevant, extras such as school fees. A specialist will consider all angles in a very complicated area of the law.
Best wishes,
Marilyn

mikey - September 2, 2011 at 3:32pm

If you move in together(co habit) you have then made a commitment to live your lives together. Some people see no reason to get married…it is after all an expensive party!! Just because you are married doesnt mean you will stay together for ever!! the fact that you aren’t doesn’t mean the relationship is doomed. If however you do not want to marry to protect your assets in case of a break up….then i would seriously think long and hard about said relationship.If the relationship breaks down then it should be 50/50 straight away(you chose to share your lives and all in them!) then allowances should be made for children and the care of. But as many of you say and know ,it will be difficult and complicated because ,as human beings ,some of us want more than our FAIR share and will tell lies to get it. 50/50 absolutely everything assets AND kids(Cost and custody) and the cost of the fall out. Then grow up,get on with your lives and care for your kids!! They are the ones that suffer more because of the bickering anyway.

Lukey - February 8, 2012 at 1:57pm

If you move in together(co habit) you have then made a commitment to live your lives together.
============================

Says who ? That by definition is inaccurate.

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If however you do not want to marry to protect your assets in case of a break up….then i would seriously think long and hard about said relationship.
============================

Why ? The divorce laws are hopelessly unreasonable (in the view of many) so this is a way of obtaining a fairer resolution – and everybody knows the score because no contractual commitment has been made – why is this so hard to understand ?

Stella - August 13, 2012 at 3:31am

Marilyn, I’ve come a little late to the party but
I notice you seem to concern yourself mainly with women who gave up their careers to raise a family.

I am interested to hear your response to Saskia, Happy now, and Rhodie. Do you think it is fair that if cohabitation rights were in place, a financial settlement could be claimed by their partners? Or would you not propose rights would extend in such cases?

Stella - August 13, 2012 at 3:56am

I do have a personal reason for joining this debate.

I have been with my partner for 14 years and we have two children together aged 11and 12.

When we got together he was in a lot of debt, had no assets, and was at university retraining ( ie not working) . We had known each other for many years previously and I had always thought of him as a “good guy”( which he is ) .

However I had a well paid professional job and owned my home outright and was extremely wary of signing over my assets to him by marrying .

However I am not in the least materialistic and the whole time we have been together what I earn has been considered joint and he has free access to the monies in the joint account my salary is paid into. I also paid off all his debts.

We had our two children straight away (both “old ” parents without time on our side!) and the agreement was that he would be the stay at home parent in the early years. ( He had no job; I had a good job) . I was not happy about this and would have far preferred to be home full time with the kids when they were young but there was no way this could happen – he had no job .

However I am fortunate to have worked just 2 or 3 days a week throughout .

The relationship has now completely broken down, to a large extent because of his reluctance/refusal to seek employment and his minimal input to domestic chores.There is no need whatsoever now for a full time stay at home parent . Bear in mind I have only ever worked part time.

Over the years I have come to feel completely taken advantage of financially. He is basically a lazy user ,( but a very nice man and a good father. )who watches lots of sport on TV and indulges his love of expensive mountain bikes ( paid for my me )and other gadgets.

Last year I looked into the possibility of separating and was horrified to discover that the Family Law Scotland Act 2006 has conferred financial rights on my partner in the event of a split. ( yes, I am in Scotland) On paper he could argue he was the main carer of the children , because I went out to work ( part time ) while he did not work. But the reality is he was /is the main carer on the 2 or 3 days I work, and I am the main carer on the other 5 or 4! Would a court seriously order me to hand over a large chunk of my savings in the event of a separation? Do you really think this is fair?

Marilyn Stowe - August 13, 2012 at 10:15am

Stella
Thanks for your comments. Could I refer you to the decision of the Supreme Court on Gow-v-Grant which is featured on the home page of this blog? http://www.marilynstowe.co.uk/2012/07/07/gow-v-grant-the-supreme-court-rules-on-cohabitation/
You will see that they deal with this case, the first to be decided at that level on Scottish cohabitation law, and make it clear that it is not a form of divorce settlement.
Rather it is about compensating for any economic disadvantage suffered as a result of the relationship.
It may be in your case that your partner has suffered none in which case there will be no compensation payable. I dont know – Im not a Scottish lawyer and I dont know all the facts.
I would suggest in light ot the Supreme Court’s ruling you should take good legal advice in Scotland, and when you see a solicitor have full details of the entire nature of your relationship, what both of you originally brought into the relationship, where you were both living at the time, what if anything you or he gave up, who paid what and so forth. What benefits has he gained from this relationship? What losses have you sustained? Be fair in your assessment.
My reading of the case and of the approach of the Judiciary as it went up the line, is that they will be fair but wont be overly generous. As I say, the law is not intended to operate along similar lines to a divorce settlement, because marriage creates a legally binding relationship with rights and obligations, cohabitation creates no such legal relationship.
Best wishes
Marilyn

Observer - August 13, 2012 at 6:16pm

Incidentally, Stella, this is how most if not all fathers feel at the point of separation. Working moms married to stay-at-home dads are indeed usually treated just as abusively by our courts. It begs the question as to whether the family court system is not inadvertently penalizing women for working and not staying at home with the children?

“Over the years I have come to feel completely taken advantage of financially. He is basically a lazy user ,( but a very nice man and a good father. )who watches lots of sport on TV and indulges his love of expensive mountain bikes ( paid for my me )and other gadgets.

Last year I looked into the possibility of separating and was horrified to discover that the Family Law Scotland Act 2006 has conferred financial rights on my partner in the event of a split. ( yes, I am in Scotland) On paper he could argue he was the main carer of the children , because I went out to work ( part time ) while he did not work. But the reality is he was /is the main carer on the 2 or 3 days I work, and I am the main carer on the other 5 or 4! Would a court seriously order me to hand over a large chunk of my savings in the event of a separation? Do you really think this is fair?”

Luke - August 16, 2013 at 7:54pm

I understand how people (mainly women to date) are unhappy that because they didn’t get married or get anything down in writing they think they are losing out – but honestly, whose fault is it that they didn’t get this sorted out ?

Just because people feel entitled to certain things doesn’t mean that they are – I’m sure the other spouse doesn’t see their claims as reasonable – you have to agree on these things up front and then decide whether to proceed – asking the courts to step in to deal with these mistakes and no contract makes bad law.

If I buy a massive amount of shares in ‘Hopeless Corporation’ and it goes belly up should I somehow get my money back simply because I shouldn’t have bought them ?

We need some accountability here – and we need children to be educated about these things in school – but lawyers have no interest in campaigning for that because it means fewer legal cases for them…

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