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square pegs and round holes – when the case was heard by the Supreme Court, back in May 2011, I argued that rigid and outdated property law was ill-equipped to regulate the end of a cohabitating relationship that had been every bit as financially complex as a marriage.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

Morris Room, Oxford Union

It would be fair to say that the past week has been an eventful one – not least because on Thursday, I addressed the Oxford Union. I had been invited to debate before the house, speaking in favour of the motion, “This House believes that marriage is an outdated institution”.

Oxford Union debates are always popular; I was honoured to receive the invitation, and delighted to accept it. Other speakers in proposition included Joanne Edwards of Manches and Ella Robertson, a talented student from Balliol College. Sadly and predictably, our motion fell, but it was quite an evening. The speakers in opposition included the journalist Catherine Blyth, author Adele Parks and Harry Benson of the Centre for Social Justice. Arriving at the Oxford Union, walking up the crunchy gravel path, I glanced through a window to my left and saw Sir Malcolm Rifkind, Chair of the Intelligence and Security Committee, speaking to some of the students. Had it been his son Hugo, whose columns I read every week in The Times, I would most certainly have joined in!

Before the debate I was welcomed by graduate Pippa Neal, who organised the debate (flawlessly, I might add) and kindly given the Union’s Morris Room for my own use. Then it was onto drinks, photographs and dinner around an impressive, horseshoe-shaped dinner table. I was seated at the top, between Oxford Union President James Langman and Miles Coates, a student and political officer of the Conservative Association who was opposing the motion. After signing the book, the debate took place in the imposing debating chamber, next to the Union. It looks very much like Parliament, no doubt intentionally, nurturing as it does future politicians. The chamber was packed, upstairs and downstairs. The debate was preceded by the procession of Union officers and the speakers to their seats, accompanied by applause and cheers. You couldn’t help but relax and smile at such a welcoming audience.

The debate lasted for two hours, all conducted with good humour and very keen brains and flair, especially amongst the students. I was sitting next to Niall Gallagher, a graduate and high flying investment manager, who spoke in favour before me.  As Adele Parks waxed lyrical about all the sex you have when married, he jumped up with a “point of information”.

“It’s quality, not quantity”, he said to roars of laughter from the audience! I wouldn’t be surprised if he ends up in politics.

Afterwards there was a very welcome and relaxing reception.

For me, it was a surreal and entirely fabulous experience. The best way I can describe it is that it outdid anything in a Harry Potter novel. All around the Oxford Union building hung photographs of famous people who had taken part in the debates. I felt deeply privileged to be taking part in one such debate. And as you may discern from the fabulous wallpaper (above), the Morris Room is named after William Morris. By concidence, Morris was my maiden name, so it seemed doubly fitting!

My husband Grahame came with me to inspire confidence. He did a great job. It did seem ironic, speaking in favour of the motion when I was the longest-married speaker there! My argument was that the institution of marriage had been stripped of its value and significance by family law reform.

As for the institution of marriage: I have copied my notes below, and will leave you to decide…

The debating chamber.

Marriage. Is it truly “magic glue”? Or are wedding rings now regarded as “the smallest handcuffs in the world”?

To begin, let me tell you a little about my own background and experience of the institution of marriage.

I went to university at a time when many women worked only until they got married at about age 20. Then they stopped to give up work once the “family breeding programme” was under way.

Me? I decided to become a lawyer.

For the past 30 years I have represented an average of some 300 clients a year; I have worked with thousands of divorcing men and women, across the entire social spectrum, in this country and across the world. During this time there have been significant changes in our society. Most of all, changes to how we value marriage and how we define families.

We have moved light years from the traditional 1960s family. What is a traditional family nowadays? The composition of family has altered to such an extent that it has dramatically overshadowed the role and public perception of marriage. Nowadays, family practitioners, lawyers, judges, counsellors, therapists, social workers, all deal with ‘families’ not marriage, in family law. A family might consist of a childless couple, gay or straight. A family might consist of a single parent or two parents of one two or more children. There could easily be three or even four “parents”: step-parents, adoptive parents or surrogate parents, biological parents and non-biological parents, gay parents, straight parents or grandparents who are acting in loco parentis. There are mindboggling permutations of what a “family” means today, and it is nothing to do with marriage. No-one who works with families in crisis defines a family by virtue of a marriage certificate.

Tonight you have been told about the importance of marriage and its magic, glue-like qualities. You have heard about the psychological value of the marital bond. I don’t dispute any of it.  But being happy within marriage is a different argument. Nobody should ever be denied the right to marry if they wish, provided it is lawful to do so. Our debate tonight is completely different and we mustn’t get sidetracked. Is the institution of marriage outdated?

As a family practitioner I think – albeit sadly and with regret, because I know firsthand of its benefits - that it is.

You have been told that the collapse of cohabiting relationships, rather than the collapse of marriages, is to blame for the rise of family breakdown in this country. You have heard that, far from being outdated, marriage remains the “gold standard”; that in fact, family life will be strengthened if the importance of marriage is successfully reasserted.

However the facts speak for themselves. In the 16 to 44 age group, there are now more couples cohabiting than there are married couples. Various reasons have been proposed for this decline, and you have heard some of them tonight. You must make up your own minds.

But as a family lawyer, I know of one very good reason why.

Take for example, the new Leader of the Opposition. Not so long ago, an unmarried man could not hope to become an MP. Yet here we have a happily cohabiting, non-married father of two – and who knows, a future Prime Minister of this country - who recently said of his live-in barrister partner and the mother of his two children: “She’s not my wife…Thank God for that”.

It is because of the differing perception of what marriage now means to a man and a woman that marriage is set to continue its slide into obsolescence.

Speaking at the Oxford Union

Let me explain!

The family law blog that I write prompts regular comments and emails from men of all ages and occupations.  Some of these men clearly believe that our family law is biased towards women to such a degree that, as one wrote recently, getting married is no longer a “viable option”.

To quote another: “It’s just not worth it”.

Marriage used to be a good investment for a man. His wife would cook his meals, clean the house, do the shopping, produce all his children and look after them, too. If his marriage failed, he would have to dip into his assets - but he would only have to hand over a few morsels. It was a win-win.

Women rarely pushed for divorce not because they revered the institution of marriage, but because they couldn’t afford the consequences thereafter.

Maintenance payments were small and hard won; matrimonial property division did not favour the wife. The lowest point surely was Dart v Dart in 1996, when the wife was awarded less than one-fortieth of a £400 million fortune – and was also made to pay her husband’s costs.

But by then, the tide had already turned. More women were going to work. Fewer women were financially dependent upon their husbands. Women could control the ‘’breeding programme.”

And as women became self-sufficient, more wives left their husbands. In the landmark divorce case White v White in 2000, judges were thereafter instructed to divide the matrimonial assets equally. Sharing? A starting point of 50/50?
Not likely!

The repercussions of that ruling are heavily felt by the wealthier party, usually the man, today. If a marriage breaks down, a “poor” husband can stand to lose most of his capital and up to half his income. A rich husband now has the equal sharing principle to contend with. He stands to lose millions to a wife who has never worked, who stayed at home and raised the children – something conventional 50 years ago, but in the post-White age, such a woman is now styled a “gold digger”.

In my experience breadwinners, most of whom are men, abhor these new rules. It is no coincidence that as the marriage rate declines, cohabitation, which comes without the legal strings, is soaring in popularity.

And how ironic that marriage is regarded as “old fashioned” when it is currently cohabitation, the supposedly modern alternative, which harks back to an earlier age.  There is no sharing and no reasonable needs to be met if a long term relationship breaks down.

Thus marriage, a patriarchal institution that no longer favours men, has slowly but surely, been rendered void of its value and significance. This is by virtue of current law, which governs it, the customs practiced within it and the lure of cohabitation, which remains unregulated by law. Although I was a member  of the Legal Advisory Group to the Law Commission, which recommended increased legal rights for cohabitees, so far the calls appear to have fallen on deaf ears.

Instead there have been moves to restore the institution of marriage to its original status, at least in part. There are calls to invest a gargantuan £30 million into “relationship education”, and calls to “incentivise” marriage by restoring tax breaks for married couples, although these had no discernible effect when they existed previously. Then there are calls to legalise prenuptial agreements, to put “gold diggers” back into their deserved financial straitjackets. All to save marriage. But whatever the moralisers try and do, it is too late. The genie is well and truly out of the bottle.

Why trouble to marry, if it comes to deciding whether to walk away scot-free, or walk away financially decimated? It’s a no brainer, isn’t it? As yet another male reader wrote on my blog: “Fewer people will get married as the divorce courts lack credibility”. Case proved?

Marriage is no longer a “magic glue”. In the 21st Century it has finally come unstuck.

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.

For me, Sara’s comment was well-timed, coming as it did after the Law Commission had published its provisional proposals for the legal status of prenuptial agreements. An editorial of mine had just been published in the Yorkshire Post. In it, I concentrated on the emotional impact of prenups. I noted that in my experience, the resulting power imbalance between a couple can serve to increase hostility and resentment. Far from saving a marriage, a prenuptial agreement may be the cause of its irretrievable breakdown.

Although Sara isn’t married, I wonder if her words don’t add weight to this argument:

“There are people like myself, who have been in a 10-year-plus relationship, who have never been married but would very much like to get married. My partner is divorced, has been stung by his ex wife who took everything she “was entitled” to – although she had never worked, lazy and contributed very little, hence why the marriage broke down. He now, even though I have had the same job for last 15 years, pay my way, have a mortgage with him albeit in unbalanced shares, and his proposal was “subject to you taking the same percentage out of the house as you financially contributed” (approx 10%), I can have a car and that’s it.

“I work very hard, I am the driving force behind home, I organise everything and quite frankly, he would be lost without me. We will never be on the same salary – he earns a lot – I earn approx 0.25 of his salary. But do you really think that is fair? I am now 40 years old, being asked to consider children out of wedlock – which yes is possible but not something I am comfortable with in the slightest. Do you also think it is fair that our relationship should be “because we choose it”? No – it is because of what happened to my partner in his divorce and he doesn’t want to have that happen again. Do you think it’s fair that because of his situation, I either can stay as a partner, never have the experience of a marriage ceremony, and God forbid should I sign the document and something goes wrong, I end up having to start all over again whilst he stays in the house, benefits from all my hard work (decoration etc) and I end up working the same hours as I did when I first scraped together the deposit on my first flat, which was sold to put the funds into the house? And if I have a child – I would have that to contend with too?

“Is security of a marriage not a two-way thing? Is it no longer about knowing the person before you marry them? I am 40 as I’ve said, my partner is 47. We have been together for over 10 years, known each other for 12 years and that apparently, holds absolutely no value. What for me would be a fair document in the event of a split (i.e. keep the proportional split in the house but split 50/50 any increase in the value of the house) is apparently not acceptable.

“Quite frankly, am sick to death with it all! I cannot blame my partner – it is the law that stops things being about values and instead about deal breakers before you head down the aisle…….marvellous!”

So let’s summarise Sara’s position, which I would describe as unhappily unmarried. She has been in a relationship with her partner for 12 years. She has actually been cohabiting with him for 10 of those years. When they began living together, they agreed that they would own their house in unequal shares, the same as their respective financial contributions, and that when the house was sold, the net proceeds would be split in those same proportions. They agreed nothing else, because Sara didn’t see the need or perhaps had no choice, because her partner has been divorced. He has had one divorce payout, and he did not wish to be “caught out” again. So this was the only deal to which he would agree and Sara went for it.

Despite the passage of time, all that they have shared and done together, all she has done for him, for them both, his position has not changed. He won’t marry her, even though he would appear to know full well of all her fears about finances as she gets older. He knows that she works hard in the relationship. He knows too of her perception that the contribution she has made deserves greater recognition. But he won’t budge or alter his deal. It’s take it or leave it for him.

Sara, on the other hand, is increasingly anxious. She has become acutely aware that her own contribution to the relationship has been completely undervalued. His former wife did far better and never worked, although she presumably made her own contributions. His former wife had needs, which the court recognised. Such is the value of marriage in current law.

Decision time

There is little that Sara can do about her own situation which, probably correctly, she assesses as more financially valuable than that of her partner’s former wife. But once bitten, he won’t even agree a prenup. He won’t change his mind.  Why should he?

As far as she can make out, in law she can only be pinned into place by the equivalent of a watertight prenup, which her partner holds in the palm of his hand. Worse still, from what I can gather, it appears to be only on that basis that he would have a child with her. She has given and given. Now she is finding out that he intends to stick to this quasi agreement.  She is being held to her bargain.

The decision is now hers. Does she stay or does she go? Clearly, she has no chance of convincing her partner to marry. If he won’t even give a child of his the stability, comfort and security of marriage, what will convince him?

Sara blames his former wife and our current divorce law for her predicament. But I don’t. The decision was his, is his and remains his. He could alter his position at will, but he won’t.

So what does Sara do?

The Law Commission is proposing that clauses in prenups would be overturned if they made insufficient provision for children. So if Sara did marry and was held to a prenup under the terms described above, she could legally obtain provision for her child. This would be exactly as the court ordered for Mr Granatino’s children, even though they dismissed his own claims and held him to his prenuptial agreement, unfair as that prenup appeared to be.

But Sara isn’t married. Can the law help her?

One option, of course, is that she could simply walk away. Perhaps she would rather live alone than be part of an unequal relationship that causes her such distress. She could take it on the chin, cut her losses and start again. He might even miss her, recognise he loves her… and who knows? Anything is possible when emotions are involved.

If he remains immovable, should she willingly bring a child into the relationship? That is a difficult question, and is one for Sara to answer.

But if Sara did decide to bite the bullet and have a child, her situation in law would dramatically change if her relationship with her partner broke down. Ironic, isn’t it? She would be able to make financial claims against him – and he would not be able to contract out of them. A Carer’s Allowance, payable to Sara during her child’s minority, would be calculated in a similar way to spousal maintenance, plus housing, lump sum and income claims for the child.

Overall, however, if proof of the appalling impact that a binding prenup can have upon the weaker spouse is required, this is it. And there isn’t even a prenup.