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.