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.

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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 »

Older couples, especially if they have been widowed or married to others, often don’t wish to live together. They prefer to marry.

I have found, however, that those who enter into such marriages are often oblivious to the financial consequences that can be incurred if the relationship breaks down at a later date. The risks are all the more acute when one party is much wealthier than the other.

Let’s put aside the dependency claim that the less wealthy party has against the other on that person’s death. Good legal advice should ensure that a carefully drafted will can avoid nasty claims between a dependent co-habitee – whether married or not – and the family of the deceased.

Instead, let’s consider what might happen in a worst case scenario, if the marriage breaks down. It’s a gloomy approach, I know, but it is worth bearing in mind that second marriages have a higher failure rate than first marriages. This may be because in some cases, a new spouse is unlikely to be warmly welcomed into the other’s family, giving rise to bitter arguments.

If the parties were simply cohabiting then, unlike on death, there is no entitlement to any form of provision. They go their separate ways, taking what belongs to each of them. A cohabitation agreement and trust declaration at the outset can sort out how asset and property division will occur in the event of a breakdown.

But what happens if they are married? The case of MD v D (2008) EWHC 1929 is a salutary reminder of the financial pitfalls of a short marriage between older couples. Continue reading »

With a headline of “Men become richer after divorce” adorning a page in the Observer recently, I felt compelled to write a response to Amelia Hill’s article, which was published this weekend on the paper’s letters page.

The initial piece was based upon research carried out by Professor Stephen Jenkins, a director of the Institute for Social and Economic Research and chair of the Council of the International Association for Research on Income and Wealth.

It began with a blunt finding from Professor Jenkins’ report – “divorce makes men – and particularly fathers – significantly richer. When a father separates from the mother of his children his available income increases by around one third. Women, in contrast, suffer severe financial penalties. Regardless of whether she has children, the average woman’s income falls by more than a fifth and remains low for many years.”

As I have previously blogged, in the current economic climate the issue of ‘lump-sum’ settlements has become very important, as the marital wealth to be shared is worth substantially less than in previous years.

My letter read as follows:

“I am not surprised to learn that the average woman’s income plummets following divorce. As your report correctly highlights, the prognosis for many women is dire.

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