A blog reader enquired recently about the cohabitation legislation in Australia, asking: “Are you familiar with it and its effects and what is your opinion?”  This was an interesting request, so I asked Jenny Wilmot, a talented trainee solicitor here at Stowe Family Law and Christopher Othen, a senior associate at Sydney family law firm Barkus Doolan Kelly, to take a closer look.  Many thanks to both. Jenny has written a new post about their conclusions.

In a previous post, Cohabitation: England v Scotland, I predicted that the rather radical Cohabitation Bill put forward by Lord Lester in 2008 may have been too extreme for our government to accept into our legislation. I based this upon the fears that had arisen around the more moderate recommendations made by the Law Commission in 2007.

Had it been passed, the Cohabitation Bill would have given greater statutory protection to cohabitants, allowing the court to make a financial order if it felt that it was just and equitable to do so. The court would have had to take into account much of the same factors as it does for couples settling finances after the breakdown of the marriage, including the welfare of any relevant child, the length of cohabitation, contributions of each party (financial or otherwise), income and other financial resources and financial needs and obligations of the parties. Cohabitants would also have been given a chance to “opt out” of this process.

While this rather ballsy attempt by Lord Lester was supported by many family practitioners around the country, it still remains somewhat of a political impossibility for the foreseeable future. For some, the consequences of going further than the Law Commission’s conclusions would be too high.

A look at international variants of cohabitation law, however, can help us to view the situation in England and Wales in context. I have previously written about the Scottish system which does not give separating cohabitants the same rights as divorcing spouses, but does give weight to the fact that couples who have lived together for more than a year may be entitled to some financial rights, when one party has suffered an economic disadvantage due to the separation or if the defender has derived an economic advantage from the applicant’s contributions.

In Australia, cohabitation law goes further still. It has recently been amended following the passing of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008. Continue reading »

JK Rowling makes a very sympathetic case in The Times for the plight of lone parent families living on benefits.  If she wasn’t known to be such a great friend and supporter of the Labour Party and the Browns, one might be wholly, instead of partially, convinced by her arguments. Yesterday I was invited by the Yorkshire Post, as one of 40 Yorkshire people, to meet Gordon Brown. The invitation came at very short notice so I couldn’t make it. I couldn’t turn my clients away, even for the Prime Minister! But had it been possible, this topic would have been on my agenda.

I have written before on a similar subject: the Every Family Matters report prepared for the Conservative Party last summer, by Iain Duncan Smith’s ‘Centre for Social Justice’ think tank. I have a client who is a prominent member of the Conservative Party and I was recently told that my views are well known to them. (This information was delivered with a disapproving look.) I came straight back with all my arguments. I intend to pose them again now, in the context of Ms Rowling’s commentary.

I believe in families: families of all types, single, married, divorcing, cohabiting. They all deserve consideration and recognition, rather than approbation. Every one of us belongs to a family, and none of us should ever feel entitled to criticise another family of whom we disapprove.

The one-parent family is a very sensitive, difficult topic. It often encompasses the concept of lone parenting itself and the poverty trap, together with the financial impact and the emotional fallout of children growing up without two parents living in the same home, with one parent struggling to provide all for the most part – and not always successfully. Continue reading »

This post won Family Lore’s Post of the Month Award for November 2009.

Today I appeared on BBC Radio 4 Woman’s Hour in a debate with Baroness Ruth Deech about the subject of cohabitation.

Two years ago the Law Commission (of which I was a member of the Legal Advisory Group) recommended that on cohabitation breakdown a scheme should be introduced which would compensate a cohabitant who could establish economic loss as a consequence of the relationship. It was purely compensatory, and not intended to give a claimant a divorce type settlement, because, as was stressed in the report, there was no intention to equate cohabitation with marriage. This form of compensation is already law in Scotland and the government is awaiting feedback from the Scottish scheme in order to decide whether to introduce similar provision for the rest of the country. Earlier this year, Lord Lester’s Cohabitation Bill, which proposed reforms to protect cohabitees and their children from falling into poverty, was debated in the House of Lords.

The story has hit the news again this week, as Baroness Deech has given a lecture describing Lord Lester’s proposals for a cohabitation law as “a windfall for lawyers but for no one else except the gold digger”. She believes that cohabitation law could invite blackmail and bullying from former partners and that it “retards the emancipation of women”.

These latest offensive and unfair comments are, of course, particularly close to my heart.

Continue reading »

I have a personal interest in the Law Commission’s proposals to revamp the law for cohabiting couples, which would give cohabitees the same rights on death as married couples. As a cohabitee of almost six years, who has only recently agreed to make an honest man of her partner, would I be better off “living over the brush” – or is marriage a safer place to be?

The answer is clear.  As the law currently stands, unmarried partners get nothing if their partner dies without making a will.  A lot of people find this very surprising.  What is even more surprising is that the length of the relationship or the existence of children makes no difference. Surely if you have been together over 20 years and have five children together, you would be entitled to something?  I am afraid not.  If one partner dies and the surviving partner wants to challenge the lack of provision for them, they face protracted and costly litigation under the Inheritance Provision for Family and Dependents Act 1975. There is no guarantee of success.

Under the new proposals, couples who live together for more than five years or who have children together will be treated as if they are married, if one of them dies without making a will. Continue reading »

I wanted to put my last post, about the Centre for Social Justice’s plans for cohabiting couples, into a factual and legal context. The couple I am about to describe never gave a thought to the nightmare “what if” scenario that exists for modern day cohabitants. Their experience is a salutary example to the millions of other couples who are “non-people” in the eyes of the law because they are not married.

The case, Webster v Webster (2009) 1FLR 1240 was heard on 13 January 2009 before His Honour Judge Behrens in my home city of Leeds.

I have decided to write about it precisely because it is an “everyday” case, not a glamorous one at all. The facts are unremarkable. The man and woman lived together for 27 years and had two children. Their family home was registered in the man’s name only. The man also had three children from a previous marriage.

Like most couples, both parties worked. He earned far more than she did, but both contributed fully to the household expenses. Then, aged 54, the man unexpectedly and suddenly died from a heart attack. He died ‘intestate’, meaning that he left no will.

For the woman this was a disaster – not only emotionally, but also legally. Had she been his wife she would have been entitled to inherit her share of the estate, automatically under the intestacy laws. Continue reading »

Every Family Matters, a report prepared for the Conservative Party by Iain Duncan Smith’s ‘Centre for Social Justice’ think tank, received a good deal of press attention at the weekend.

The report recommends a compulsory, three-month “cooling off” period for couples who were set upon divorce. It proposes the founding of “family relationship hubs”: a nationwide network of counselling centres at which families would receive advice before and after marriage. It also recommends that couples who are living together should not be afforded the same legal rights as those who are married, arguing that “healthy marriages build healthy families”.

I read this report from cover to cover – and its conclusions horrified me. I note that my sentiment is shared by others.

Ironically, these proposals are throwbacks to Victorian times – at a time when the Conservative Party is at pains to present itself as modern and progressive!

Women

I have seen the “Victorian Woman” described thus: She was a perfect lady, who did not work, (except for charities); she did not earn (except perhaps for literary and artistic work); she ran her household efficiently, and she found fulfillment bringing up her husband and children. She could have some education, but not much, and avoided involvement in politics or argument with her husband. Continue reading »

John Bolch, solicitor and author of the popular Family Lore blog, invited me to contribute to the latest edition of his Family Lore podcast. This was my first foray into podcasting  – and I enjoyed it! We discussed cohabitation, Mr Justice Coleridge’s views on marriage, the recent Radmacher v Granatino ruling, and more besides.  I would like to thank John for giving me the opportunity to take part.

The result, which is around 25 minutes long, can be found here.

Image credit: ralphbijker.

Earlier this week Sir Paul Coleridge, who sits as a High Court judge in Central London, spoke out about family breakdown. His speech has been widely published: I read about it in the Daily Mail and The Daily Telegraph. He talked about his sadness and frustration at the volume of family breakdowns, with lawyers warning that the family courts are “overstretched to the point of collapse”. He lamented the plight of children caught up in what he described as a game of “Pass the Partner.” The judge called for wide-ranging investigations and new laws to try and stem the tide. His belief is that that marriage, rather than cohabitation is the “gold standard” of relationships.

This speech has been widely commented upon, and I have noticed that responses from members of the public tend to fall into one of two categories. Either they back his views about marriage, or they simply dismiss what he says because they believe that he has failed to move with the times and fails to understand the new types of family that are in existence today.

My own view is straightforward. Continue reading »

Much has been written by Marilyn Stowe about cohabiting couples and their rights (or lack thereof). I recently helped a client whose problems are so complicated, they could form the basis of an exam question on cohabitation.

This man was given a substantial sum of money by his parents when he was just 21. He decided to invest it. He bought four properties with the money and spent the remaining £50,000 refurbishing one of them. He has nothing left.

He took his girlfriend to a solicitors’ office; because they were in love and he intended to marry her, the properties were actually purchased in their joint names. His solicitor did not ask him to consider what would happen if the relationship broke down. So nothing was agreed and no protection was obtained for all the money he had put into those properties.

The couple lived together in the most expensive property. Her relations moved into two of the others and his sister moved into the remaining property, on a rent-free basis.

Then the girlfriend became pregnant and a baby. My client has evidence that another man is the father, although the girlfriend denies this. She refuses to move out of the house and “wants her share.” She is suggesting that he sees the baby once a fortnight. To the client’s disbelief he has now also heard from CMEC (formerly the CSA), who require him to maintain the child. Continue reading »

I am writing this post from Porto Ercole on the Tuscan coast in Italy. The coastline is rugged and dangerous. The sea is crashing in high waves onto those rocks. The almost vertical mountains along the coast helped deter invaders in Etruscan times. Today Porto Ercole is a luxurious haven for Romans escaping the hustle and bustle of their great city. But for me, Porto Ercole is the place where one of the greatest artists the world has ever known met his death. 

Caravaggio, died on the beach here in 1610, after an ironic period of unlawful imprisonment – given that he had escaped prison before for murder. He died alone suffering from malaria as he rambled senselessly towards the sea. He had known in his short life every type of person: from the poorest to the richest, paupers and princes, he mixed with them all: villains, vagabonds and thieves. He was himself a murderer. Yet, by virtue of his genius, he was capable of depicting intense spirituality in paintings that are at once hauntingly beautiful and terrifying and shocking in their brutality. His severed head of Goliath is a self portrait painted at a time when he was wracked with guilt following the murder. If anyone knew every type of human condition, if anyone felt every type of emotion, and had the gift to show his feelings so nakedly to the world, it was Caravaggio. 

Fast forward to the 21st century and last week in the High Court we saw the human condition, once again at its absolute worst.  Continue reading »