However that shouldn’t keep the law from addressing the needs of all couples. The Government spat came in the same week that the Law Commission published a final report called Intestacy and Family Provision Claims on Death, in which it proposed to give certain qualifying couples in a cohabitating relationship rights to automatic inheritance on intestacy.

The report highlighted some startling figures: it is estimated between half and two-thirds of the adult population of this country do not have a will. It is thought that those most in need of a will – such as cohabitees – are more likely not to have one. The report also pointed to an ignorance of the law in relation to death, and particularly what happens to the estate of a deceased person who dies without a will (“intestate”) whether married or unmarried.

I know about the injustices that can occur all too well, because I often encounter couples who don’t know what will happen if one of them dies intestate, or  with a will that makes insufficient provision for all of that person’s dependents. Such dependents can include include a former wife, a cohabitee and children.

A few years ago I acted for a very pleasant man who was getting divorced. He was in his late 30s and had two young children. His new partner was an equally pleasant woman, and I met her a couple of times during the divorce. The case settled, and he arranged to pay continuing maintenance to his former wife for the young children. He gave his wife his share of the marital home as a clean break.

I never expected to hear anything further. Sadly, about ten years later, his partner came to see me with bad news. My former client had been killed in a road accident. He had never made a will, and therefore died intestate.  The couple had never married or had any children. Under the intestacy rules, his partner had no automatic entitlement to any of his estate. Instead the estate was automatically inherited, in its entirety, by his two children who were still under 18. As the children’s guardian, the man’s former wife was in charge of obtaining the probate (called “a grant of letters of administration” when there is no will). So his former wife was claiming his share of their home on behalf of the children.

My former client and his partner had bought their property together, as joint tenants. They believed that his half-share would automatically pass to her (as it did), but were unaware that a claim could be made against his share of the house on behalf of the children.

In previous posts I have explained the difference between people buying a property together as joint tenants and tenants in common. In this case they had agreed that each other’s share would automatically pass to the second partner on the death of the first, so they had bought the property as joint tenants and had both contributed what they could afford. At the time of purchase the couple had taken out a joint lives policy to cover the mortgage. This was now paid off following my former client’s death, and his share of the house was worth a significant amount of money. He had also left an estate of about £200,000 in savings, and a policy which had matured. All of it was inherited by the children and she got nothing – apart from a claim on half a house that she had understood would always be hers.

This lady had lived very happily with her partner as man and wife, and when she came to see me she was understandably in a bad way. She had earned far less than her late partner. On top of her bereavement, she was now facing the prospect of losing her home.  She had found out, in the worst possible way, how cruel the law can be when there is no marriage and no will.

What if she had been married?

Under the intestacy provisions for married couples, this lady would have inherited the first £250,000 and had a life interest (the income) in half of amount remaining. Her partner’s children would have inherited the other half outright.

If there were no children, the wife of an intestate would inherit the sum of £450,000 outright, with a life interest in half the rest, and the remaining amount passing to surviving parents and siblings. This is not very satisfactory, but better than nothing at all.

So what were her options?

In this case, the Inheritance Provision for Family and Dependents Act 1975 applied. It was amended in 1995 on the recommendation of the Law Commission. A dependent cohabitee or, from January 1996, a cohabitee who is not a dependent but who lived with the deceased as man and wife for a period of two years immediately prior to the death, can make a claim for financial provision.

The court can make orders very similar to on divorce: maintenance, lump sums, transfer of property orders and so on. In this case, following a negotiation with the partner’s former wife on behalf of the children, an agreement was reached. A lump sum payment was to give the children all the child support they would have received had their father survived. The children were nearing their 18^th birthdays, and we included some provision for university education within the calculation. The rest of the estate went to my client – including the house, which she kept. The estate paid all the legal costs.

The Law Commission’s next steps

Very few people are aware that their automatic entitlement is nothing at all if they are unmarried and their partner dies intestate. Even married partners are left in difficulty because of the archaic nature of intestacy law. This is an area that certainly appears to be in need of urgent reform.

The Law Commission’s report is accompanied by two draft bills. The Inheritance and Trustees Powers Bill (summarised here) proposes that if a spouse dies intestate, the entire estate will pass to the surviving spouse when there are no children or other descendants. When there are children, the Bill aims to simplify the sharing of assets. These suggestions make good sense and are years overdue.

More radically a second draft bill, The Inheritance (Cohabitants) Bill, would give unmarried partners who have lived together for five years the right to inherit on one another’s death. If the couple had a child together, this entitlement would accrue after two years’ cohabitation, provided the child was living with the couple when the deceased died. As the Law Commission has made clear, there is much here that is controversial, and support for the reform is by no means universal.

As the Law Commission also recognises, at present there is no law for regulating unmarried couples who have simply split up. As we now know, there will be no such provision in this Parliament. As always, however, the reasoning of the Law Commission is measured, restrained, cogent and above all, it is persuasive.  It is practical and reflects an appreciation of the realities of modern life in the UK.

But what will the Government make of the latest proposals? Perhaps the fact that there are two draft bills, tells its own story. I think we will see change for married couples and intestacy. It is difficult to see any controversy there. When it comes to unmarried couples, however, I am far from certain about changes in the law relating to intestacy and automatic inheritance. Current disagreements within the Cabinet only serve to enhance my doubts.

In the meantime, whoever you are and whatever your circumstances, if you don’t have a will then please make one. There is no time like the present!

Earlier today I appeared on BBC Breakfast, to discuss the Supreme Court’s ruling in Kernott v Jones. Accompanying me on the sofa was Patricia Jones, whose appeal against the decision to award her former partner half the value of their jointly-owned property was upheld by the five Supreme Court justices who heard the case.

My previous posts about Kernott v Jones:

What the Kernott v Jones judgment means for cohabiting couples – a look at the implications of the Supreme Court’s decision for everyday families, along with the Supreme Court’s press summary.

Kernott v Jones in the Supreme Court: what you need to know – I wrote this post the day before the Supreme Court handed down the ruling, predicting the case’s outcome (correctly, as it turned out). This post is lengthy, but aims to provide a breakdown of the legal arguments for lawyers and non-lawyers alike.

Kernott v Jones: a case of square pegs and round holes – when the case was heard by the Supreme Court, back in May 2011, I argued that rigid and outdated property law was ill-equipped to regulate the end of a cohabitating relationship that had been every bit as financially complex as a marriage.

Of course, I am not the only lawyer to have blogged about Kernott v Jones this week. For those with an interest in the case, here are some different perspectives, including two from property lawyers:

Nearly Legal | Jones v Kernott: Ending the big debate? – “My hope is that this line of cases will somehow re-connect the law with everyday life to the extent that is possible.  It will undoubtedly lead to more litigation.”

Family Law | Hayley Trim’s Analysis – “I wonder how many judgments we will now see saying ‘I infer from the parties’ conduct that they intended that they would share the property in these shares. And in the alternative, even if it is not possible to infer such an intention, it is fair having regard to the whole course of dealing in relation to the property to impute such an intention to them.’ Probably quite a few.”

Law and Lawyers | Cohabitation: what about the house? Part 2 – “It is to be hoped that Jones v Kernott will have added some clarity to the law but statutory reform is urgently needed.”

Rowena Meager’s Property Law Blog | Jones v Kernott (Round 4) - “I read the Supreme Court’s judgment with a sense of disappointment.”

Although Lord Justice Jacob’s take on the case was pitted against that of two very high-powered figures, I hoped that my support for his admirably straightforward and sensible judgment would prove well-founded. And so it has been. Today the Supreme Court upheld the appeal by Ms Jones, ruling that Mr Kernott is entitled to just 10 per cent of the former couple’s jointly owned property. (This earlier post provides a more detailed background to the case.)

So what does the Supreme Court’s decision mean for all those cohabiting couples who own property together? Put simply, if they are not married and their relationship later breaks down, it means a loss of certainty about who gets what. In Kernott v Jones, the property was owned 50:50 on paper, but the Supreme Court altered that ratio because “the presumption may be rebutted by evidence that it was not, or ceased to be, the common intention of the parties to hold the property jointly”.

I suspect that purist lawyers, accustomed to applying straightforward law, will abhor this loss of certainty. But one party’s loss is another party’s gain. The judgment also promises more just outcomes for parties who have relatively few legal rights because they are unmarried, who instead remain trapped in a hotchpotch of outdated and outmoded law in 21^st century society.

My views on the legal remedies currently available to cohabiting couples are well-known to regular readers. In a post about the recent Family Justice Review, I commented that I didn’t wish to be seen as standing on a soap box. That remains my position, but from a personal perspective, I believe that the Supreme Court’s decision is a triumph for family lawyers who have long cast about in vain for ways to bring about more equitable outcomes for their clients.

Now if the Government would only get its act together and take the relevant law reform in hand, outcomes for clients would become fairer still. People like Ms Jones and Mr Kernott – who, let’s remember, were two ordinary people fighting over a relatively modest bungalow – would not have to spend time and money jumping through the hoops of the Chancery courts in an attempt to obtain a fair outcome.

The Supreme Court press summary accompanying the judgment is set out in full below. The full judgment can be found here.

PRESS SUMMARY

Jones (Appellant) v Kernott (Respondent) [2011] UKSC 53

On appeal from the Court of Appeal [2010] EWCA Civ 578

JUSTICES: Lord Walker, Lady Hale, Lord Collins, Lord Kerr, Lord Wilson

BACKGROUND TO THE APPEALS
This case concerns the correct approach to calculating beneficial interests in property where the legal title to the property is held in joint names by an unmarried couple but there is no express statement of how it is to be shared.

Ms Jones and Mr Kernott met in 1981. They had two children together. In 1985 they purchased a house in Thundersley, Essex in their joint names. The price paid was £30,000 with a £6,000 deposit paid exclusively by the proceeds of sale from Ms Jones’s previous home. No declaration was made as to how the beneficial interest in the property was to be held. The mortgage and upkeep on the house was shared between them. In 1986 they jointly took out a loan of £2000 to build an extension. Mr Kernott did some of the work himself.

The relationship deteriorated and in 1993 Mr Kernott moved out. From that point onwards Ms Jones lived in the Thundersley property with both children. In 1996 Mr Kernott bought his own house in Benfleet, Essex. Over the years, the value of the Thundersley property increased and in 2006 Mr Kernott indicated that he wished to claim a beneficial share in it. In response, Ms Jones, in 2007, applied to the county court for a declaration under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 that she owned the entire beneficial interest in the property. By 2008 the property was valued at £245,000.

The county court judge noted that the house was first purchased to set up a family home. It was bought in joint names and a presumption arose that they intended to jointly share the beneficial ownership of it as well. Up until 1993 there was no evidence to rebut that presumption. Ms Jones claimed however that in the 14 and a half years following there was evidence that their common intention had changed. Mr Kernott had ceased to make contributions towards the running of the house and had made only very limited contributions towards the support of their children. Furthermore it was mostly during that latter period that the value of the property had increased.

The judge held that their common intention had indeed changed. In reliance upon the decision of the House of Lords in Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432, he held that once the initial presumption of joint beneficial ownership is displaced and there is no further clear evidence as to the division of shares in the property it falls upon the court to infer or impute an intention to the parties as to the division of the property that they, as reasonable and fair people, would have intended. He decided that Mr Kernott was entitled to only a 10% share.

Mr Kernott appealed to the High Court arguing that it was wrong for the court to infer or impute a change of common intention and further wrong for the judge, in effect, to substitute a division that he considered to be fair as between the parties. Mr Nicholas Straus, QC sitting as a High Court judge dismissed his appeal. Mr Kernott appealed to the Court of Appeal which, by a majority (Jacob, LJ dissenting), allowed his appeal.

JUDGMENT
The Supreme Court unanimously allows the appeal and restores the order of the county court. Lord Walker and Lady Hale give the lead judgment. Lord Collins agrees with Lord Walker and Lady Hale and adds some reflections of his own. Lord Kerr and Lord Wilson agree in the result but reach it by a different route.

REASONS FOR THE JUDGMENT
References in square brackets are to paragraphs in the judgment

Lord Walker and Lady Hale: The principle recognised in Stack v Dowden is that where people purchase a family home in their joint names the presumption is that they intend to own the property jointly in equity also [15]. The starting point is different in cases where the property is bought in the name of one party only. The presumption of joint beneficial ownership arises because (i) purchasing property in joint names indicates an “emotional and economic commitment to a joint enterprise” and (ii) the practical difficulty of analysing respective contributions to the property over long periods of cohabitation [19-22].

The presumption may be rebutted by evidence that it was not, or ceased to be, the common intention of the parties to hold the property jointly. This may more readily be shown where the parties did not share their financial resources [25]. In the absence of clear evidence of intention, a question arises as to when the court can infer such intention and when the court can, instead, impute an intention. An inference is drawn where an actual intention is objectively deduced from the dealings of the parties; an imputation is one attributed to the parties by the court [26-27]. The search is primarily to ascertain the parties’ actual intentions, expressed or inferred but if it is clear that the beneficial interests are shared but impossible to infer a common intention as to the proportions in which they are shared, the court will have to impute an intention to them which they may never have had [31].

The following principles apply: (i) the starting point where a family home is bought in joint names is that they own the property as joint tenants in law and equity; (ii) that presumption can be displaced by evidence that their common intention was, in fact, different, either when the property was purchased or later; (iii) common intention is to be objectively deduced (inferred) from the conduct and dealings between the parties; (iv) where it is clear that they had a different intention at the outset or had changed their original intention, but it is not possible to infer an actual intention as to their respective shares, then the court is entitled to impute an intention that each is entitled to the share which the court considers fair having regard to the whole course of dealing between them in relation to the property; and (v) each case will turn on its own facts; financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended or fair [51].

On the facts of this case the county court judge held that the parties’ intentions as regards the Thundersley property had changed after their separation. It was a “…logical inference that they intended [Mr Kernott's] interest in Badger Hall Avenue should crystallise” in 1995, when they took the house off the market, cashed in an insurance policy, so that Mr Kernott was able to buy a house in his own name [48]. The calculation of their shares on this basis produced a result so close to that produced by the judge that it would be wrong for an appellate court to interfere.

Lord Collins agrees with Lord Walker and Lady Hale, holding that the differences in reasoning set out below are “largely terminological and conceptual and are likely to make no difference in practice.” [58].

Lord Kerr holds that the divergence in reasoning might, in practice, make a difference [67]. The question concerns how far the court should go in seeking to infer intention and when it is justified in imputing it. It is preferable to give effect to the parties’ intentions where possible but the courts should not be reluctant to recognise when it is not and to impute an intention accordingly. In agreement with Lord Wilson it is not possible to infer the intention in this case but the division that the judge made is a fair one as between the parties and should stand.

Lord Wilson considers that on the facts of this case, it is impossible to infer the intentions of the parties and the court can only impute to the parties an intention that the house be held in fair proportions along the lines of those set out by the county court judge [89].

Kernott v Jones is a case arising from a family break-up, but because the parents cohabited and never married, it is being dealt with in the Chancery Court where “touchy feely family law” and “reasonable needs” have no place. (That is one reason why I continue to argue for specific legislation for cohabiting couples. It would avoid any more cases such as Kernott v Jones. Instead, such cases would be returned to the Family Division, where they properly belong.)

The facts of the case are as follows:

• Mr Kernott and Ms Jones began living together in 1983 and had two children.
• In 1985 they jointly bought a home together for £30,000. Ms Jones paid the £6,000 deposit, and the rest was obtained with a mortgage. At that stage she should have protected herself by having a declaration of trust drawn up, and perhaps
  that would have avoided the subsequent legal battle, but it didn’t happen.
• Mr Kernott paid for a property extension, which increased the value of the property by £10,000. The couple added a further £2,000 to the mortgage.
• Mr Kernott and Ms Jones split up in 1993. At that point both parties beneficially owned the property in equal shares. They
  also shared the proceeds of an endowment policy equally.
• Fourteen years passed. Mr Kernott bought another home
  for himself. Ms Jones, who remained living in the original property, paid all of the outgoings on the property. She also raised the
  couple’s two children without any contribution from Mr Jones.
• In 2007, Mr Kernott sought to obtain his 50 per cent share of the original property.

• The questions for the court: has Mr Kernott and Ms Jones’ beneficial interest in the property altered since their separation – and if so, when did this happen and how?

In two lower courts, Ms Jones’ share of the property was adjusted to 90 per cent. Mr Kernott’s share was reduced  to 10 per cent, in line with the House of Lords decision in the case of Stack v Dowden.

In Stack v Dowden, a home was owned jointly by an unmarried couple but their beneficial interests in the property were not stated in the conveyance when the property was purchased. The House of Lords had to decide whether or not the parties’ interests were 50:50. In that case the interests were held to be 65:35.

Lady Hale – now a Supreme Court justice, of course – was generally agreed to have given the leading judgment with which all the other judges concurred. She referred to the common intention to vary their beneficial ownership.

But if there is nothing in writing, how does such a variation come to be? The answer: it is to be inferred…

Kernott v Jones in the Court of Appeal

However the Court of Appeal, took a more conservative view, criticised Stack v Dowden and with reference to a judgment of their own called Oxley v Hiscock, held there was no evidence of any common intention to alter the 50:50 ownership of the property in the case of Kernott v Jones.

All that was left to do was an exercise called equitable accounting, to offset relevant payments by Ms Jones to relevant entitlements of Mr Kernott, such as rent, for the occupation of “his” property.

It was at this point that Ms Jones appealed to the Supreme Court.

Kernott v Jones in the Supreme Court

Firstly, it is worth noting that when Kernott v Jones was heard by the Court of Appeal, the leading judgment was trenchantly handed down by Sir Nicholas Wall, who is now the President of the Family Division. For this reason, the Supreme Court may also follow the conservative line that there was no “common intention” to alter beneficial ownership from anything
other than 50:50.

However it is also worth noting that the Court of Appeal’s decision in Kernott  v Jones was not unanimous. So let’s take a look at the dissenting judgment of the Court of Appeal’s Lord Justice Jacob, who argued against the majority view, and consider what the Supreme Court may make of his opinion.

In the case of Kernott v Jones, the law was stated and applied by Lord Justice Jacob in the following  steps, quoting Lady Hale in the case of Stack v Dowden (my explanatory notes below):

(1) Whether property is held legally by one party or the other or is held jointly, the presumption is that the beneficial interest corresponds to the legal interest.

-          This means that the parties own the property equally.

(2) In particular: “In the domestic consumer context a conveyance into joint names indicates both legal and beneficial joint tenancy, unless and until the contrary is proved”

-          So remember: if you are cohabiting, you buy a property jointly with your partner and you don’t want the presumption of 50:50 to apply, you MUST do something about it at the time of purchase. Get your solicitor to prepare a simple Declaration of Trust, which will mean you won’t end up in this type of litigation nightmare.

(3) The burden lies “on the person seeking to show that the parties did intend their beneficial interests to be different from their legal interests and in what way”

-          If you want to argue that there was an intention to alter the 50:50 split, then it is up to you to prove it.

(4) Moreover the onus is heavy.  ”At the end of the day, having taken all this (including the host of factors mentioned by Lady Hale in cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual

-          And it won’t be easy!

(5) The legal test can be stated shortly: “The search is to ascertain the parties’ shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it”

-          The court will look at everything that happened to decide if how and why it altered.

(6) The exercise of finding whether there were shared intentions and if so what they were is not easy.  It involves a multifactorial examination of the circumstances.

-          This is what the court will do.

Lord Justice Jacob went on to quote a lengthy excerpt from Lady Hale’s leading judgment in Stack v Dowden, which I have copied here in full for reasons that will become clear:

In law, “context is everything” and the domestic context is very different from the commercial world. Each case will turn on its own facts. Many more factors than financial contributions may be relevant to divining the parties’ true intentions. These include: any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the parties’ relationship; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses. When a couple are joint owners of the home and jointly liable for the mortgage, the inferences to be drawn from who pays for what may be very different from the inferences to be drawn when only one is owner of the home. The arithmetical calculation of how much was paid by each is also likely to be less important. It will be easier to draw the inference that they intended that each should contribute as much to the household as they reasonably could and that they would share the eventual benefit or burden equally. The parties’ individual characters and personalities may also be a factor in deciding where their true intentions lay. In the cohabitation context, mercenary considerations may be more to the fore than they would be in marriage, but it should not be assumed that they always take pride of place over natural love and affection. At the end of the day, having taken all this into account, cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual.

But here’s the crux…

Lord Justice Jacob also pointed out that intentions can change over the years.

This possibility was also acknowledged by Lady Hale in Stack v Dowden, when she stated:

There may also be reason to conclude that, whatever the parties’ intentions at the outset, these have now changed. An example might be where one party has financed (or constructed himself) an extension or substantial improvement to the property, so that what they have now is significantly different from what they had then.

Therefore when Kernott v Jones was heard in the Court of Appeal, Lord Justice Jacob found that the county court judge who had previously ruled on the case had not made an error in law.

The county court judge had stated:

Having established that principle I have to consider what is fair and just between the parties bearing in mind what I have found with regard to the whole course of dealing between them

Lord Justice Jacob commented (emphasis mine):

If this were a free-standing passage it might be arguable that the Judge was applying the wrong test – one of just deciding what was “fair and just”. Such an approach would be inconsistent with the “parties shared intentions” test of Lady Hale and, incidentally also inconsistent with a resulting trust analysis.   But the passage is not free-standing.  It follows repeated references to Stack and the need to discern the parties’ intentions.    So I do not think the Judge was at this point simply abandoning Stack.  What he is saying in context is that the parties’ shared intentions must be taken to be (they can be “inferred or imputed”) is that they should each have a fair and just share.   That is what the Deputy Judge also thought.
Accordingly I conclude that the Judge made no error of law.

Therefore it was on the facts, and in accordance with the law, that Lord Justice Jacob found the original judge was “rightly and in accordance with Stack, still focussing on the parties’ intentions.   He is saying they have changed over the years.   That is just what Lady Hale contemplates as a possibility [in Stack v Dowden].”

Lord Justice Jacob concluded (again, emphasis mine):

If one asks oneself how did these matters come to be, it is not impossible to conclude that they did so by a shared intention that the parties’ interests in the house were to vary over time, rather than that his interest as a proportion of the value of the house should remain fixed and immutable.   It is possible to infer or impute such a shared intention. And the Judge, having seen and heard the parties was in a better position to decide the matter – and particularly the intentions of the parties – than we are.

Accordingly I would not interfere with Judge’s conclusion.   It is not necessary or correct for this court to consider the matter afresh.   I would dismiss this appeal.

So what can we conclude about Kernott v Jones?

In law, can Mr Kernott and Ms Jones have started out intending to own the property 50:50 legally and beneficially, but intended their beneficial ownership to change following their separation? And if so, how?

I will leave you to make up your own mind, while pointing out that in the absence of an express Declaration of Trust, four courts have gone through the tortuous process of analysing in detail what actually happened between the two parties with regard to the ownership of their house. The answer is not cut and dried, but I hope that I have provided some food for thought.

To date two courts – the county court and the high court – have found for Ms Jones, notwithstanding the fact that nothing was in writing. One court, the Court of Appeal, has found for Mr Kernott. All three courts purported to apply the same law to the same facts.

And now for the fourth court, the most important court of them all. What will the Supreme Court decide? We cannot know, but it is to be hoped that the judgment will clarify the law, and apply it to the facts.

When you read all about it tomorrow, I hope this background proves useful. Perhaps the Supreme Court will concur with the Court of Appeal, in which case the decision will be described as all too predictable. But don’t be taken aback if there are surprises in store…

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.]

This is a slightly expanded version of my latest post for The Times, which appears on The Experts blog today.

In 2005, the Government asked the Law Commission to report on possible changes to the law in relation to cohabitation. Two years later, the Law Commission’s recommendations for a new scheme of financial remedies were published, after which its report seemed to disappear into a parliamentary vacuum. Last week a brief written statement, from justice minister Jonathan Djanogly, appeared in Hansard. If you look you may struggle to find it, but here it is, buried between a lengthy update about Southern Cross Care Homes and a correction to a previous statement about UK Balance of Payments data.

In this statement, the minister reveals that the Government has “carefully considered” the Law Commission’s recommendations for reform of cohabitation law, but has decided not to take them forward. Two reasons are given:

“The findings of the research into the Scottish legislation do not provide us with a sufficient basis for a change in the law. Furthermore, the family justice system is in a transitional period, with major reforms already on the horizon.”

There you have it: a decision on reforms that could affect the lives of hundreds of thousands of people up and down the country, reduced to just a few short sentences. Perhaps it would have gone quite unnoticed, had it not been for a press release dispatched by the Law Society, which advised cohabiting couples that despite the Government’s “U-turn”, they can still sign binding cohabitation agreements. There was also a terse response from the Law Commission. It was understandable. I can’t help but reflect on all that wasted time, effort and cost spent so far, for nothing.

It is a fact that more couples in the 16-45 age group are choosing to live together than marry. Many of these couples go on to have families before getting married and of those, a good number separate. At present there is no cohabitation law to govern such a split. Instead, couples can only turn to complicated property law in the Chancery courts, or remedies intended for children under the Children Act.

And if one party suffers economic loss and the other prospers as a result of the relationship? Well, that’s the roll of the dice. Often it is the woman who gives up her future job prospects and reduces her earning capacity, to raise the couple’s children. If the relationship subsequently breaks down she can find herself homeless and penniless. Those who work within the family justice system report that cohabitation breakdown, along with all its injustices, is a growing problem.

As a member of the Legal Advisory Group to the Law Commission, which called upon the Government to give new legal rights to cohabiting couples back in 2007, I remember how the Government’s initial request was met with enthusiasm across the family law field. When the report was compiled, the pros and cons of law reform were carefully considered. All involved were acutely aware that the public might equate new laws for cohabitants with marriage, which was not the intent.

So the Law Commission worked hard to produce a balanced report. Its recommendations did not equate cohabitation with marriage, but recognised the urgent need for tailor-made law. It suggested a remedy based on any “economic imbalance” that had been the result of the cohabitation, along the lines of the Scottish model. (Scotland has had cohabitation law in place since 2006.) The Government of the time announced that it wished to investigate how well cohabitation law was performing in Scotland.

Despite Jonathan Djanogly’s dismissal, cohabitation law in Scotland is alive and well. It has been tested on several occasions, most recently in a major judgement in Gow v Grant, handed down by the Court of Sessions on 22 March 2011. In brief: Ms Gow sold her home to cohabit with Mr Grant and sought compensation for her economic loss as a result, following the end of a five-year cohabitation. The Court of Sessions overruled the judgment of the lower court and held that the sale was down to her, not him. Mr Grant had not caused the loss. There was no award.

The judgement reviews the Scottish authorities to date and acknowledges the difficulties the lower courts have in interpreting a new statute. The Court gives guidance, suggesting a narrow interpretation based upon what the statute actually says. Likewise, judges in England exercise their discretion, with interpretation from the higher courts. So why, I wonder, has our Government decided against the implementation of similar law? And why seek to “bury bad news”?

I suspect it has everything to do with the Government’s fixation upon “family values”, and the conviction of many in the Conservative Party that marriage is the answer to society’s ills. Such an approach wilfully excludes couples who don’t happen to be married or in a civil partnership, along with their children.

The Government’s refusal to take the Law Commission’s proposals any further means that upon separation, cohabitants – particularly the principle child-carers – will continue to leave with nothing. Their children will continue to fly below the radar of the courts. Then again, why bother giving people enhanced legal rights, when the abolition of so much family law legal aid will only restrict the public’s access to legal remedies? I suppose that for those rich individuals who object to general equality within our divorce laws, and for those who wish to limit access to justice on the grounds of cost, the continued absence of legal rights for cohabiting couples is to be welcomed.

Little wonder that years of hard work, enthusiasm and hope amounted to less than 150 words in Hansard.

Year in and year out, similar studies produce similar results. Often they are followed by the same hand-wringing,  the same lectures and the same admonishments – but little in the way of action.

Across the Western world, children are increasingly being born into one-parent families. Increasing numbers of children are being raised by lone mothers in single parent units, and some of those children will never enjoy a meaningful parental relationship with their father. Neither will they enjoy the financial security provided by two parents.

On Father’s Day, David Cameron took the opportunity to criticise “runaway dads”, arguing that society should stigmatise “fathers who go AWOL” as it does drink-drivers.  He is still mourning the loss of his own father, whom he clearly adored. What he says is understandable, given his own situation, but his words aren’t going to alter anything anytime soon.

I love and respect my own father. His relationships with others, his determination, courage and selflessness are qualities I try to emulate. My father keeps his word. If he says he will do something, he does it. If he shakes hands on a deal, it’s a deal. He has the discipline to run countless marathons, and cycled when he had shin splints and couldn’t run. I trail in his wake. Where would I have been without my dad?

So with the Sunday newspapers full of stories about fatherless children, what would I do about “runaway dads”, if I could?

I would change the law. I would begin by abolishing the utterly useless CMEC.

At a stroke, I would even up the playing field between unmarried couples who have a family together. I would introduce new family law, which provided for all families in non-marital situations. Recognise and compensating for economic imbalance caused by having children, it would include better financial provision for the partner – often the mother – whose ability to earn is limited because of childcare obligations. When you have children to care for, it becomes far tougher to earn a living and the cost of living is more expensive. For the parent with care, it is harder to keep up in the job market and progress along the career ladder. I would require the other partner to chip in more fully, and at a rate far higher than at present. So this new law would introduce a form of maintenance for such parents, alongside capital and housing provision, the amount and terms of which would be for a court to decide.

I don’t see why such provision should be limited to cohabiting couples only.

Why shouldn’t such law provide a requirement for fathers who have fathered a child, but have never been in a cohabiting relationship, to contribute far more equitably towards the mother of that child? The same arguments must apply. Why should financial provision be limited only to the child?

Why, in cases of economic imbalance caused by the birth of a child, shouldn’t the non-resident parent be required to pay up and provide fully for his family?

In short, I would remove “runaway dads’” present, uncurtailed ability to begin new relationships, fathering and then deserting children all over again, with barely any legal or moral obligations.

As an aside, I would also urge glossy magazines to stop selling us stories of unmarried women who have children by rich men, as though these couples’ glamorous lifestyles can be emulated in the real world. In reality, those women who do not move in such wealthy circles often discover that if their relationships break down, they and their children are left facing financial hardship.

If Mr Cameron wants to make a real difference, meaningful legislation should be his starting point.

Kernott v Jones is a cohabitants’ property dispute. In 1985 the parties purchased a property in joint names. The deposit was paid by Ms Jones, and a property extension was paid for by Mr Kernott. The couple separated in 1993. Ms Jones and the couple’s two children remained in the property, and Ms Jones assumed sole responsibility for the mortgage and household expenses. In 2006, Mr Kernott claimed his 50 per cent share in the property. The High Court awarded Ms Jones a 90 per cent share, but this decision was overturned by the Court of Appeal.

Eleven years after White v White, the appeal in Kernott v Jones was heard today by the Supreme Court. It was heard by five heavyweight judges including Baroness Hale and Sir Nicholas Wilson, in his first case as a new appointee to the Court.

The question at hand is this: to what extent (if at all) will the Supreme Court push the boundaries of joint property law ownership, where one party has contributed far more than the other?

In the earlier House of Lords case of Stack v Dowden, some boundaries were pushed, albeit intended for a limited number of cases. It is speculated that the renamed Supreme Court in Kernott v Jones could go further. The court may hold that a common intention to depart from equality could be expressed or inferred in the conduct of the parties, or even “imputed” to the parties. This approach, of “imputing” a common intention, was trenchantly rejected by the Court of Appeal in Kernott v Jones.

So it falls to the Supreme Court to decide if the High Court is correct, the Court of Appeal is correct or if they will come up with a different approach. They will consider to what extent the concept of “fairness” counts, if at all, in redistributing the parties’ equitable interests in their property.

An interesting article in Family Law Week, by Dr Robert H. George of the University of Oxford concludes:

If the evidence shows that these cohabitants’ actual intentions (whether express or, more likely, inferred) were that the property should be held in fair shares, those intentions should be given effect by the court. There is no reason in principle not to allow this approach (though it might not sit comfortably with the general aim of avoiding litigation in these cases, which may become increasingly significant as legal aid becomes scarcer). Nothing is imputed under this approach. The court’s evident desire to reach a fair outcome in disputes about former cohabitants’ property rights can be met by recognising that many cohabitants actually intended that the outcome be fair.

That is only the first part of the job, however. Assuming the Supreme Court does decide it will adjust the parties’ shares, what test does it then apply to calculate each party’s precise share?

As with Radmacher v Granatino in 2010, the long and winding judgements expected in Kernott v Jones may well occupy their Lordships and Ladyship for the next six months. Until then, family lawyers up and down the country are adopting a pragmatic approach, advising clients who are caught up in cohabitation disputes to “wait and see”.

The Supreme Court appears to be faced with a truly mind-bending job. Should property law be the subject of such microscopic analysis, essentially because no proper law exists to regulate cohabitation?

At present, unmarried couples are unable to apply to the court for regulation of their financial affairs, in stark contrast to married couples and couples who have entered into civil partnerships. However when Lord Justice Wall, the President of the Family Division, stated recently that urgent legislation is required for cohabiting couples, more than 60 per cent of The Times readers surveyed disagreed. Clearly there are deeply held objections: social, religious and moral.

Why? Overall the most powerful objection appears to be that married couples have chosen to enter into a legally binding relationship and, if such a relationship ends, legal regulation must apply too. Cohabiting couples have deliberately chosen not to follow suit. Cohabitation is on the increase while marriage is on the wane, in part because couples are considering and rejecting this formal, legal regulation of their relationships.  They are fearful of the legal consequences if the relationship falters. The argument goes that if a legally binding agreement has been rejected, why provide the protection of tailor-made cohabitation law?

I disagree with this argument because a cohabitation manifestly does produce a relationship in need of regulation. All we have at present is a hotchpotch of rigid, outmoded and outdated property law to regulate the end of a relationship that may have been every bit as financially complex as a marriage.  As Kernott v Jones goes to show, this clearly doesn’t fit the bill.

Its inadequacy is further highlighted by the fact that in the 16-44 age group in this country, cohabiting couples now account for more relationships than any other. As such children of cohabiting relationships, unlike those of divorcing couples, pass under the court radar too. Do their needs not count in the same way as for children of married couples?

What we need, irrespective of whether or not we personally approve, is comprehensive law that does fit the bill. They already have this law in Scotland.

We are playing catch-up. We clearly need new law that does not equate cohabitation with marriage, and does not reward parties with marriage settlements. Law that would compensate those such as Ms Jones, who has sustained economic imbalance as a result of cohabitation. Law as intended by the Law Commission, whose report to the Government continues to gather dust.

In the meantime, with no such end in sight, Kernott v Jones will see the most agile and brilliant legal brains in the country occupied for months, considering firstly whether a peg is round or square – and secondly deciding in which round or square hole the round or square peg should somehow be fitted.

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.

The latest report from the Centre for Social Justice

Have you seen the latest report from the Centre for Social Justice? I am no fan of this right-wing think tank, founded by Iain Duncan Smith MP, which left me flabbergasted last year when it published patronising proposals for “family relationship hubs” and enforced “cooling off periods” for couples whose relationships had broken down.

It may surprise you to learn that in the CSJ’s latest report, Family breakdown in the UK: it’s NOT about divorce, I find something to like. The report’s author, one Harry Benson, brought his own marriage back from the brink and has thereafter dedicated himself to saving others’ marriages. He founded the Bristol Community Family Trust, which runs marriage relationship and mentoring courses.

Of his bona fides, there can be no issue. I admire his sterling work to try and keep couples together. I have long thought that the abilities to recognise when marriages are in trouble, and to help the parties through their problems before the “uncoupling” process has gone too far, are vital tools in saving marriages that might otherwise be doomed.

My opinion of the Centre for Social Justice, however, remains unchanged. I find much in the latest report to dislike, and I have wearied of this think tank’s sugar-coated vision of marriage as the magic cure for UK families’ shortcomings. In short: while I agree that marriage is the “gold standard” for couples, particularly those who have children, I do not believe that a broken marriage can be held together by divorce law aimed at forcing couples to remain married. Indeed, I believe there are plenty of instances of children who have been gravely psychologically harmed by remaining with dysfunctional parents who loathe each other.

My son Ben wrote his dissertation on this same subject. It is a complicated study, based on many authoritative sources in the field. He writes about the uncoupling process and the need for education about this, but he parts company with the Centre for Social Justice on the wisdom of keeping failed marriages together. This he rejects as too late, since the uncoupling process to which he and Benson both refer is, by the point of divorce, complete and irreversible (you can read his full dissertation at the bottom of this post).

Family breakdown in the UK: it’s NOT about divorce is a short report that focuses on the costs of family breakdown in families where there are children. It divides parents into married, cohabiting and non-cohabiting groups.

The report’s data and charts show that divorce is “not the problem”, in that it “accounts for £1 in every £7 of support for lone parents with children under 5″. So the focus falls to unmarried couples, who account for £6 in every £7.

Mr Benson’s figures appear to be taken from a number of sources, including the Office for National Statistics. He states:

By mapping family breakdown data amongst parents with five year old children from the Millennium Cohort Study onto national birth data from ONS, it is now possible to establish the specific contribution of divorce to lone parenthood during these crucial early years.

I must admit, however, that I find the formula used to calculate costs somewhat odd:

The cost of family breakdown for each birth cohort by category = (the number of births) x (the average break-up rate) x (the average number of years that family breakdown takes place before age five).

I am not a statistician, but I am unsure why the costs have been calculated in this way. Perhaps a more detailed explanation should have been included, for clarity.

The report concludes that because unmarried couples with children are far more likely to split up than married couples with children, and because family breakdown amongst unmarried couples is so much more expensive, the answer is to encourage unmarried couples to get married: “reasserting marriage is contentious but is vital”.

Personally, I don’t think this adds up at all, in that it presumes a ring on the finger is some sort of magic talisman to ward off family breakdown. As if a wedding turns a vulnerable relationship into an invincible one! It doesn’t. When a marriage reaches the divorce stage, that marriage has failed. The uncoupling process is complete.

It is a shame that the conclusion is so predictable, because the raw data is interesting and I can’t help thinking that plenty of other highlights and ideas could have been pulled from it. For example, the results show that couples who have children but who do not live together have a higher breakdown rate then cohabiting couples and account for disproportionately high costs. This nugget is almost brushed aside, however, as the report’s focus is trained upon cohabitants and married couples.

Does this report feed into the agenda of keeping failed marriages together? For various reasons, it doesn’t add up for me. What would add up is a recognition of the need for improved legal rights for cohabiting couples, for all the reasons that I have described in previous posts about cohabitation. if the government is going to remain determinedly blinkered on this issue, no doubt we will be seeing more reports like this one from the Centre for Social Justice and its ilk.
Benjamin Stowe – A Socio-Legal Study of Divorce and Family Law in England and Wales