Cohabitation on BBC Radio 4 Woman’s Hour

Earlier today I appeared on BBC Radio 4’s Woman’s Hour, alongside Harry Benson of the Bristol Community Family Trust, to discuss cohabitation and the Government’s abandonment of plans to give cohabiting couples greater legal protection.

If you are a first-time visitor to this blog after listening to the programme: welcome!

As you will know already, this latest development is a controversial one, and I am less than impressed by the Government’s refusal to take the proposals for law reform any further. The injustices we see almost daily done to cohabitants are growing and are appalling. More than two million couples are in cohabitant relationships, many with children, yet there is no adequate legal remedy if those relationships break down.

That is not to say that cohabiting couples should be treated in the same way as married couples. That is a step too far. But a failsafe, a safety net should be in place so that the weaker party is not left homeless and penniless. It was very kind of Harry Benson to refer to me as a “great champion of injustice” Law, however, is a vocation. Pointing out injustice, and seeking to remedy that injustice must surely be incumbent on us all if it will somehow achieve a fairer outcome.

Here are some of my previous posts about cohabitation, which may be of interest:

The Experts: Government wrecks cohabitation reform in just 150 words – An expanded version of the post I wrote for The Times, dissecting the Government’s brief statement and looking at the implications for couples up and down the country.

Kernott v Jones: a case of square pegs and round holes – Kernott v Jones is a case heard by the Supreme Court earlier this year. It is a property dispute between former cohabitees. The couple purchased a property in joint names in 1985 and spit in 1993, with Ms Jones assuming sole responsibility for the mortgage and household expenses. Now, however, Mr Kernott is seeking his 50 per cent share in the property. It is a case that highlights the inadequacies of current legal remedies for cohabiting couples. The judges’ decision is expected soon.

Cohabitation rights: three cheers for Lord Justice Wall! – In an interview with The Times in February 2011, the President of the Family Division confirmed that cohabitees, women in particular, are “severely disadvantaged” by current law. He argued that cohabiting couples who split up should have legal rights to a possible share of property and money.

Cohabitation: what has Australia got that England hasn’t? – A guest post from a Stowe Family Law trainee and a senior family lawyer in Australia, looking at how improved legal rights for cohabiting couples can work in practice.

Incidentally, during the discussion on Woman’s Hour I referred to a paper about population trends, released yesterday by the Office of National Statistics. It includes a piece about cohabitation and marriage in Britain since the 1970s. This crunches the numbers and confirms a significant rise in cohabitation, the increasing tendency to have a child at least a year before marrying, the rising numbers of failed cohabitations and the decline in marriage as compared to cohabitation.

Most interesting, however, is the conclusion:

We note, however, that the growth of cohabiting unions could be seen, perhaps paradoxically, as promoting rather than competing with marriage. A first reason is that marriage rates are higher among cohabiters than among the unpartnered. A second point, alluded to earlier, is that the growth in cohabitation together with the rise in the proportion of cohabiters who do not marry could be linked with the stabilisation and emerging decline in marital breakdown at short durations.This could be so if cohabitation acted as a kind of marital firewall, keeping out of the married population couples whose relationship is more fragile. The hypothesis needs further investigation in a British context.

It is a lengthy but fascinating article, and if you would like to read it you can find it here.

Could all those who argue against legislative reform, because they argue that cohabitation detracts from marriage, be wrong on this fundamental point? And if they are, then what convincing argument is there against legislation for cohabiting couples? (Particularly since it is, of course, available to cohabitees on the death of the other under the Inheritance (Provision for Family and Dependents) Act 1975…)

[Listen Again: BBC Radio 4 Woman's Hour, Friday 23 September.]

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.

View more from this author

16 comments

Tulsa Divorce Attorneys - September 26, 2011 at 1:24am

From a PR standpoint that sounds like a good opportunity.

Oklahoma City Cleaing Service - September 26, 2011 at 1:34am

Two million??? Wow that’s a lot of couples and more importantly, that’s a lot of children whose lives are being affected.

Graham - September 26, 2011 at 1:32pm

It’s not that people want to co-habit, it’s that they don’t want to get married. I agree with you that a third way should be found. It’s a shame that politicians and lawyers have made marriage so unattractive to many and attractive to gold diggers.

Interesting that you both agreed on the civil partnership point. I think you are both missing the point though. It could be a middle ground and way out of the impasse, whereby people could get a civil partnership and a pre nup without the negative connotations it would have within a marriage. I think there is a space for marriage light, especially as marriage is such a turn off these days.

Divorce Blogger - September 26, 2011 at 3:17pm

It makes a great deal of sense that couples who cohabit before marriage are less likely to separate. I have lived with my partner for nearly a year now and know, beyond a shadow of a doubt that we are, indeed, compatible. The thought of proposing has crossed my mind on more than one occasion know as I believe that the union could last for the rest of our lives (I hope she doesn’t read this!).

Personally, I believe that the government’s refusal to pass these reforms will affect young people most of all. My partner and I are currently 27 and 26 respectively and made the decision to save for a property around 2 years ago. I had discussed the possibility of proposing and saving for a marriage with my parents beforehand and my father – ever the pragmatist – recommended that I instead ask my partner if she would consider saving for a house together, claiming that it was a far better investment. It made sense – surely we should obtain a home before marrying – and after a lot of scrimping, saving and kind donations, we entered the property ladder in November of last year.

We were fortunate in that both of made nigh on equal contributions to the deposit, split monthly costs evenly and would, I am certain, be able to arrive at an amicable arrangement if we were to separate. What of those that can’t, however?

I have digressed somewhat and I apologise. My point is that, for young people who are not exceptionally affluent a home must take priority over a marriage. As a result, it is in the interest of justice to afford them similar rights to a married couple in the event of separation. Failing to do this suggests little more than a failure to move with the times.

Marilyn Stowe - September 26, 2011 at 9:17pm

Really interesting opinions and perspectives from men who have made the decision not to get married at all or not yet for different reasons. Thanks.
But….Do you think commitment and the importance/need to demonstrate that commitment to your partner and the world at large is not necessary?
And if not why not?

Graham - September 27, 2011 at 8:18am

I agree with db that buying a house together is a big sign of commitment. Probably better than marriage with it’s vows which you are free to break without sanction. I have haerd of this persons scenario many times. I have heard it said that buying a house and a mortgage is a bigger commitment than a marriage. People are more likely to keep the same bank account than the same spouse indeed.

JamesB - September 27, 2011 at 9:21am

As an aside, I think we have proved here that the name of the series entitled ‘Woman’s hour’ is an invalid name. You can’t have a woman’s hour without it being a men’s hour too, unless we are talking about homosexuals. That bugs me.

Divorce Blogger - September 27, 2011 at 11:15am

In all fairness James, all research does suggest that women are more likely to suffer negative consequences as a result of the lack of laws regarding cohabiting couples and woman’s hour is designed to discuss issues that are relevant to women. There’s bound to be some crossover in what’s discussed but I don’t think the name ‘Women’s Hour’ genuinely excludes men in any way.

Anyway, Marilyn, in response to your question, I think it’s extremely important to commit to – and show that you are committed to – your partner, but I think that marriage is just one way of doing this.

Granted, marriage is probably the most obvious way of publicly declaring your commitment to one another. It is also extremely important in terms of romance and symbolism – in as much as you are legally confirming a union, but I personally believe that a boyfriend’s/girlfriend’s/husband’s/wife’s day to day actions are what truly show commitment. Supporting your partner and showing them that you love them shows commitment. For example, my girlfriend is a teacher and returned to work following the summer holidays earlier this month. Knowing that she would have had a hard day, I stopped to but her flowers on the way home, cooked dinner and cleaned the house. They were, in the grand scheme of things, minor actions, but I think that they showed her how much I care for and how committed I am to her. Before this begins to sound like me shamelessly promoting how wonderful a partner I am I would like to point out that I know that she is committed to me because she tolerates – even loves me for – my imperfections, like my propensity to become irrationally moody when Cardiff City lose or because I’m struggling to put a wardrobe together. Put simply, merely being married does not make someone a committed partner and whilst I do intend to marry my girlfriend in the near future, I do not think that it will make me feel more secure in our relationship – I feel secure because of the way we are with one another.

It did not surprise me that the study mentioned in your post concluded that cohabitation supported marriage. As the study reported, the majority of people are still married by the age of 40 and I personally believe that several factors – not least the extremely high divorce rate – have resulted in people merely making sure that they have found the right person before marrying them. This reinforces family values as married couples are far more likely to stay married and this, of course, does not devalue family life, it reinforces it.

Marilyn, I agree with you. There is, ultimately, no reason why new laws designed to protect the interests of cohabiting couples should not be introduced.

Marilyn Stowe - September 27, 2011 at 12:36pm

The problem about buying a house is that without an express declaration of trust as to ownership it is very difficult in law if not impossible to subsequently adjust ownership, even if one party has contributed disproportionately to its acquisition and upkeep.
I’m all for new law but it looks as though it just isn’t going to happen.
But did you have to mention…. Cardiff City? To a Leeds lass?…..a Taurean one too. What’s that saying about a red rag to a bull?!!! (just joking thanks very much for your really interesting contribution)

JamesB - September 27, 2011 at 12:58pm

The lack of spousal maintenance in Wales is another factor at work here. Personally, as a 38 year old, I don’t think I can advise my children to get marriedin English divorce jurisdiction. Although I do like the idea of sorting out the percentage split wrt housing up front as db has done. 50:50 split, fair enough. Women arguing for greater than that, plus pension, car, shares, etc. on a no fault basis and need and ability to pay and because they have a womb is the problem as I have said many times before.

JamesB - September 27, 2011 at 12:59pm

I have 3 children and will advise them all not to. If they do, then I won’t be at the wedding. Not without a pre nup anyway.

JamesB - September 27, 2011 at 1:04pm

I do think there is a bit of a marriage strike on in England at the moment. At least amonst my circle of friends and acquaintences anyway.

Graham - September 28, 2011 at 10:39am

To remove this from unlucky 13 comments.

I agree with Lukey. Also, if you do this, then even fewer couples would live together and the cost of housing would get even higher and society would be even more unhappy. Is that what you want? – Coz that’s what’ll happen!

The answer is to abolish the csa and put that (cm) matter back to the courts, thus nudging (encouraging) marriage and pre nups; if you tell people how to live their lives in this country and they will tell you to p*&s off! and or riot. We have a good tradition of it in this country. The government seem to be on the way to that anyway, so they have it right on a subject (this one, family law) for a change.

Graham - September 30, 2011 at 11:03am

I meant. I think and hope that the Government are on the way to abolishing the CSA and thus encourraging more couples to get married (with pre nups) for protection. That is the future, and quite right too – as per the Gent from Bristol.

For lawyers I would suggest getting into pre nuptial law for fees rather than co-habitation law. The good old days (at least for lawyers, if no one else) of arguing Ancillary Relief under the 1973 MCA are reducing as per the unhappinness of many (including myself) at the unfairness of the outcomes and legal fees incurred.

I am happy if it pans out this way as I think it is, but time will tell. It could be we go round again with the CSA and co-habitation. I am with the gent from Bristol on that in that I hope not and people will sort their own issues out. Government (and lawyers) intervention in the bedroom and the sanctity of marriage is unwelcome and unhelpful (unless in drawing up a pre nup).

Graham - September 30, 2011 at 11:04am

I meant I am happy if it pans out this way as I think it will, and is doing.

Leave a comment