Lord Justice Wall, the President of the Family Division, has said that cohabiting couples who split up should have legal rights to a possible share of property and money.
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, can be found across this blog.
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.