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 »

The latest UK divorce statistics show that a marriage ending in divorce has, on average, lasted 11.7 years. This has given rise to a new term: the “11-year itch”.

So why get married? Because it is still seen as the right thing to do? Because it legitimises children? Because it gives out a strong image of stability?

Why 11 years? Is it because this is the average length of time it takes to become established in a marriage, to have children, for those children to reach school age and for the marriage to go stale?

This could be one explanation – and yet the number of people who are aged 60 or over when they divorce – so-called silver divorce – has also increased. I think it shows a growing attitude in society towards marriage as something that is disposable when it just doesn’t fit anymore. People live longer and life doesn’t necessarily begin at 40 or 50 or even 60. It begins when you, as an individual, make a decision that is about you and how you live your life.

Since 2000 and the case of White v White the courts have been viewing marriage as a business partnership like any other. Think about it this way: 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 »

From the Solicitors Journal, 03/11/2009.

Tepid welcome for Law Commission’s review of intestacy laws for cohabitants

Cohabitants who have lived together for more than five years could be given the same rights on death as married couples under plans unveiled by the Law Commission.

The proposals, out for consultation until 28 February 2010, suggest that if a cohabitant dies without a will and the couple do not have children, the survivor would have the same rights over the estate of the deceased partner as a surviving spouse in a marriage.

One option put forward by the commission would see the whole of the estate go to the surviving spouse or partner, a move that one lawyer described as “potential dynamite for probate solicitors”.

If there are children, the minimum qualifying period in cohabitation cases would drop to two years, but ordinary rules would apply by default if fewer than two years had elapsed.

But family lawyers have only given a tepid welcome to the consultation.

Continue reading >

From the comment pages of the Yorkshire Post, 23/10/2009.

Divorced from reality in the 21st century

By Marilyn Stowe

WE should all be raising glasses this week to celebrate the 40th anniversary of the Divorce Reform Act 1969 gaining royal assent.

The landmark statute made divorce easier, introducing what became known as “quickie divorces”. It eliminated the previous extensive, fault-based procedure, was a milestone for women’s rights, and its momentous implications are still being felt today.

On the statute’s birthday, however, I am horrified to note that the divorce wind now appears to be blowing in the opposite direction, with prominent commentators suggesting divorce should be made harder and settlements less favourable to ordinary women.    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.