A tangled legal web for the unmarried

cohabiting couples

As has been pointed out here on many occasions, the law in England and Wales does not make proper provision for unmarried couples to unravel their finances at the end of their relationships, in the same way it does for married couples. Married couples can utilise the financial remedy powers of the court, all of which are essentially contained in one place: the Matrimonial Causes Act 1973, as amended. Those who have not been married, however, are faced with a mishmash of assorted avenues of redress which may or may not be relevant to their situation, including Schedule 1 of the Children Act 1989, section 14 of the Trusts of Land and Appointment of Trustees Act 1996 and, heaven forbid, the law of resulting and constructive trusts.

There was a particularly amusing example of the tangled web of law that unmarried couples can face last week, in the judgment S v J and Others (although it was not, I am sure, amusing for the parties themselves).

The background to S v J was somewhat unusual, even if the final circumstances in which the parties found themselves were far from unique. The parties had had a relationship that lasted just under five years, and there were two children of the relationship, now aged 5 and 3. The parties had become engaged in February 2009 and, five months later, had a ceremony of blessing in respect of their intended marriage. However, the marriage was never formally celebrated because the man was unable to secure a divorce from his wife at the time (it seems that there was some dispute over whether the parties had actually married, but in March 2015 the English court made a declaration of non-marriage in respect of the relationship). The relationship ended “in difficult circumstances”, in 2013.

After the relationship ended there remained a dispute between the parties about the ‘beneficial’ ownership of four central London properties which they owned, or in which either or both had had an interest during the relationship. The question was: how to resolve that dispute, when the Matrimonial Causes Act was not available to the parties?

The answer is where I find some (albeit rather grim) amusement: section 17 of the Married Women’s Property Act 1882. The reason for my amusement is twofold. Firstly, that the parties had to rely upon a statute that is more than 130 years old and that was made in an era when ideas of equality between the sexes were, to say the least, somewhat different than they are today. You may already have guessed the second reason for my amusement: how on Earth can an unmarried person utilise a statute that specifically states in its name that it relates to the property of married women? The answer to this confusing conundrum lies with section 2(2) of the Law Reform (Miscellaneous Provisions) Act 1970, which applies section 17 of the 1882 Act to any dispute between formerly engaged couples in relation to property in which either or both had an interest while they were engaged, provided that proceedings are instituted within three years of the termination of the engagement.

That, I’m afraid, is typical of the sort of nonsensical legal gymnastics that unmarried couples have to be put through, just because they didn’t get married (or, incidentally, enter into a civil partnership). I’m sorry, but it really is absurd that anyone going to law should be faced with this sort of thing in the twenty-first century. The time has long-since come for unmarried couples to be given a proper method of resolving their financial and property disputes following the breakdown of their relationships (and before you comment: no, I am not saying that unmarried couples should be given the same rights as married couples).

If you have the time and inclination to wade through all of its 146 paragraphs and 8 footnotes, you can read the full judgment of S v J and Others here.

Photo by oatsy40 via Flickr under a Creative Commons licence

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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11 comments

A - March 22, 2016 at 9:57pm

Ridiculous. There is a legal framework already: they each own their own assets.

Stitchedup - March 23, 2016 at 11:35am

If only it was that simple. The law does make provisions for unmarried couples in the form of Constructive Trusts. In other words one party, usually the woman, can make a claim on the other party’s assets by claiming she relied on them for her future wellbeing/security and that there was a verbal contract or the like. Also, if for example, you pay for an investment in your name out of a joint bank account a claim can be made on that even if the other party isn’t paying in to the joint account and the investment was taken out before you even met the other party. The lesson to cohabitees is keep your finances and investments totally separate and do not have a joint bank account.

D - March 23, 2016 at 9:43am

Exactly. Another case of the marriage delusion trying to be widened.

Luke - March 24, 2016 at 1:25am

I agree with the other commenters – this is just another whine by John that the legal profession cannot easily create a war in court for the assets of separating cohabitees and make their money in the process – a whine which will grow increasingly loud if the marriage rate continues to decline.

Marilyn Stowe - March 24, 2016 at 6:52am

Dear Luke
Good Morning! Still as cheerful as ever?!
Regards
Marilyn

JamesB - March 24, 2016 at 11:54am

I agree with Luke. To be fair to me I didn’t wade in on the rich arab with illegitimate cockney son discussion.

Lawyers should be like water and go with the flow, as they advise their clients to. In this case doing more pre-nups and mediation for example and reducing the acrimony and cost of the matters in discussion here. To be fair to Marilyn, I have seen her undertaking those things more and more and this is a good blog also.

To be fair to Luke, that was my experiences with the lawyers on this subject also. Think I have been fair to all, good British tradition that which is perhaps why zillions want to come here. Regards to all. Peace and Love.

Luke - March 24, 2016 at 2:17pm

Yes Marilyn, I am relatively cheerful, I think you have every right to let John parade his ‘extraordinary’ views (in my opinion) continually on your blog – but I don’t see why you think that in doing so any alternative view or comment need necessarily be ‘uncheerful’.

Luke - March 24, 2016 at 2:48pm

For the record my opinion is that the way forward for the legal profession to add value to couples is to strongly promote cohabitation contracts – they certainly shouldn’t be compulsory but when starting a relationship people would be at their most reasonable and this would be a service that parties might actually WANT if they were made to think about it.
.
I know for some lawyers (and barristers – who shouldn’t exist in family court in my view) it may not be as lucrative or ‘exciting’ as fighting an all out war in court based on no contract at all – but I do think it is the way to go if the legal profession wants to repair its reputation with the public and actually provide a service to the community
.

JamesB - March 24, 2016 at 11:55am

That was British understatement, this is an Excellent site.

Marilyn Stowe - March 25, 2016 at 9:03pm

Dear James
“This is an Excellent site!” Thank you for that!
Regard
Marilyn

NOTINMYNAME - March 24, 2016 at 2:38pm

no, I am not saying unmarried couples should have the same rights as married couples ?
You must also agree with the children of unmarried couples not to have a right to their childrens birth certified name within FCP which allows a childs birth certified name on Court Orders to be changed into a name of a child that does not exist, Christian name, followed by fathers surname, followed by mothers surname making the court orders not worth the paper they are written on, but changed to birth certified name for full care order, to make sure the court gets that right?

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