The Experts: Government wrecks cohabitation reform in just 150 words

Cohabitation|September 13th 2011

 

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.

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comments(25)

  1. ObiterJ says:

    I share your depression after reading this. You may be right when you mention 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.” However, I suspect that the real issue is the cost-cutting agenda adopted so readily by Kenneth Clarke and so warmly embraced by Jonathan Djanogly who appears to delight in the removal of access to justice for the poorer in society.

    On a “tweet” today I said that most of the non-lawyer MPs have little interest in the Legal Aid, Sentencing and Punishment of Offenders Bill. To most of them, it is all rather dry and boring “lawyer” stuff. Mr Djanogly knows this and is getting a pretty easy ride in Parliament. Most MPs cannot be bothered to master the detail – and very detailed it is. The issue has not turned into votes and unless and until it does then the government will get away with the destruction of access to justice. It was easy – as Mr Djanogly did – to announce “fat cat lawyer” earnings just before the Bill was published. Great stuff for the tabloids and bound to get the unthinking public “on side.”.

    The Law Commission has not really had a good record in getting many of its recommendations enacted. It’s reports are an excellent resource for lawyers and students and that’s about it. However, I am pleased that the Commission has escaped the axe in the Public Bodies Bill. Much of our law – especially criminal law – would be a lot better had politicians adopted the many Law Commission reports and draft bills.

  2. Marilyn Stowe says:

    Arrogance is something I absolutely loathe in people. I think its the worst characteristic you can have. In fact, the more you are given, the more successful you are, the less arrogant you should be.
    But arent you seeing too much arrogance in government and the opposition right now? Lots of looking down on women, the poor, the needy from both sides? Cheap shots? It’s horrible.
    I will have you a small bet that when the Law Commission reports on pre nuptial agreements, and assuming the recommendation is they should be made binding, irrespective of injustice to the weaker party new law will fly unopposed onto the statute books.

  3.   The Experts: Government wrecks cohabitation reform in just 150 words|Untouched Smile says:

    […] The Experts: Government wrecks cohabitation reform in just 150 words is a post from: Marilyn Stowe Family Law and Divorce Blog […]

  4. Tulsa Divorce Attorneys says:

    Wow! Really??? In a few short sentences, the cohabitation law reforms are pushed aside….

  5. ObiterJ says:

    Thank you for responding to my earlier comment. I have just linked to this post from my blog. I fear that you are right regarding the attitude of many politicians to the general public. i do not doubt that financial austerity was coming but I see a lack of intelligence in choosing some of the targets for cuts. For example, early sound legal advice (free to client) on both civil and criminal matters can save masses of problems later. This is why Police Station representation is so essential.

  6. Lukey says:

    I know you don’t agree with me Marilyn, but I think this is fantastic news, I do not believe there is any general public support for cohabitation laws and further intrusion into people’s lives and I think bringing in such laws would be unreasonable and unjust.

    Even though I think Family Court behaves terribly to the higher earning spouse during a divorce at least there IS a contract. That contract may be dressed up with a wedding and a white dress and the bride and groom may not fully understand the consequences of signing that contract but at least they sign SOMETHING ! The idea that you are going to asset strip somebody (because that is what you propose) based on NOTHING except what a Family Court decides is appropriate based on taht court’s guess of what each partner in the relationship might or might not have thought about the relationship is frankly obscene.

    What is being suggested with cohabitation is patronising and looking to create a blanket law to cater for the stupidity of a minority – never a good idea. I accept that some people who cohabit don’t think sensibly and make bad choices for themselves if the relationship breaks down but that is just life. If I put all my money in a company called “No Hope Enterprises” & “No Hope Enterprises” goes bust I do not hear you suggesting that I should get all my money back because I was emotionally affected by the business I was investing in and didn’t know what I was doing !

    What is really needed in this country is the education of secondary school pupils about managing money and the consequences of marriage and not getting married and family law – but all I hear from lawyers is their complaints about the fact that they cannot get involved in cohabitation. I have read enough of your thoughts to know that you are not guilty of this Marilyn but my opinion is that the reason most lawyer’s highlight their wish for cohabitation laws is financial gain. There is no money to be gained in educating the population about the law regarding realtionships but cohabitation law would be a bonanza for the legal profession – it would be extremely messy and that means big fees. As the marriage rate has gone off the edge of a cliff the divorce rate will surely follow and a lot of family law lawyers are understandably very worried about the effect on their business – it’s an old saying but still usually true – follow the money.

  7. Tulsa House Cleaners says:

    What a mess!!! – it’s a lot like that here in the US as well 🙁

  8. Tulsa Counseling says:

    Call me jaded, I don’t have a lot of confidence in governement’s ability to get the job done right anymore.

  9. Dan says:

    I completely agree with Lukey. Marriage is all about binding contractual terms that people have no idea about until they get bitten by them. Cohabitation is all about building terms and mutual agreements as-and-when required in order to protect everyone’s interests. In the case of the former, lawyers are the only winners. In the case of the latter, couples benefit from transparency, fairness and clear expectations. Education is the answer and lawyers should benefit from positively serving society with proactive agreements that support, rather than the retrospective implementation of legislation that couples have no understanding of in the first place. More education and less legislation please.

  10. Graham says:

    More education and less legislation please.

  11. Mother says:

    Well said Marilyn. I amazed at some of the other small minded comments. Why you should a mother and the children suffer due to their partners infidelity. This is a similar view to divorce law before woman gained their rights. You did not get married so tough on you and the children. What an archaic view

  12. Gow v Grant: the Supreme Court rules on cohabitation - Marilyn Stowe Blog says:

    […] first wrote about the Scottish case of Gow v Grant in a post for the Times’ Experts blog, in September 2011. At the time, I was deeply concerned by the Government’s decision not to take […]

  13. Case Comment: Gow v Grant [2012] UKSC 29, the Supreme Court rules on cohabitation « FreeLegalWeb says:

    […] first wrote about the Scottish case of Gow v Grant in a post for the Times’ Experts blog, in September 2011. At the time, I was deeply concerned by the Government’s decision not to take […]

  14. Graham m says:

    Well done the Government for once. I have worked my whole life for my house. My new partner moved in with me a year ago with out a penny to her name. We are not having any children & I pay 100 percent of the mortgage & maintenance cost etc. If she gets sick after a couple of years living with me for completely free why on earth should I loose everything I’ve ever worked for & have to move back in with my old parents? I am to old to be able to afford a brand new mortgage all over again from the start & pay off before i retire so I would never own my home ever again. I need protection to!

    • Marilyn Stowe says:

      Graham M
      New law would not equate cohabitation with marriage. You would have protection, you would not lose everything and you would not need to move back to your parents.
      Regards
      Marilyn

  15. Tim Pryce-Brown says:

    Dear Marilyn,
    Whenever the issue of property rights arises, whether in the context of marriage or co-habitation, taking legal advice is key to avoiding the expectation gap suffered by the individuals involved when the relationship ends. I teach this subject and to try and get my students to engage, I parlty ridicule the romantic notion of a relationship and how our feelings for an intimate can actually inhibit our ability to engage in an open and frank discussion as to the consequences of property ownership in co-habitation and marriage. I agree with your conclusion that our present Government and indeed the courts do not want to see a shadow marriage law undermining the ‘real’ thing but the irony I think is that people are just as surprised and angry over the decisions made as a result of property transfers under the Family Law Act. Today on Lawtel I see the case of Petrodel Resouces Ltd et al where a company has been affirmed on appeal as a way of reducing a spouse’s beneficial interest in capital through the doctrine of separate legal personality resulting in fewer assets being available for the divorce settlement. This brings me to my final point and one that won’t go down well. It’s a wealth issue. It seems apparent to me that blue collar working women who invariably end up with the children are best protected by marriage as there is often insufficient equity in a home to justify (in practical terms) a claim under one of the implied trusts whereas a middle class woman with transferable skills will have greater freedom to choose. Dare I suggest this is another reason why the Government does not want change.

  16. Marilyn Stowe says:

    Dear Tim
    I dont disagree with you. I certainly do believe in all the benefits of marriage. However I am a practitioner and therefore have to deal with people who for a wide number of reasons have chosen to live in cohabitation relationships. Many would actually prefer otherwise and be married, but they have no choice because the decision is not theirs to make. Relationships for most are based on feelings rather than practical common sense and so the “walk away” option is not a realistic one for them either.
    So whilst marrriage was my choice, there are people in this country who dont have that choice. There are many more I suspect who dont think it matters or who would prefer not to marry because marriage is too significant a commitment to make. Marriage is, demonstrably, increasingly, unpopular.
    So from my perspective, whilst there are any number of reasons why people are choosing not to marry, it doesnt resolve the practical and very serious hardships that result when a cohabitation relationship breaks down.
    I dont believe it is right for the legislators to ignore the needs of millions of people because they believe this is the way to corral people into marriage;- legislation isnt intended to be used in that way. As a society we have crying needs for a large section of that society and law is necessary.
    I think that if we had it, marriage would become more attractive – many people choose to cohabit because they know they can leave the relationship with no obligations or reponsibilities unlike a married couple.
    So by redressing the balance somewhat, and I dont equate proposed remedies with marital remedies, and perhaps also enhancing practical benefits of marriage at the same time (so there is something for the cohabitees and the married couples) marriage might start to become more of an option.
    Best wishes
    Marilyn

  17. JamesB says:

    Completely disagree Marilyn, sorry. If you make co-habitation marriage, people will not marry, they will just not co-habitate, or will emigrate. Cohabitation or a prenup perhaps offer a viable alternative for the scenario where there is not enough money to go round. But prenups are expensive and that is a problem for the people you are talking about (including me). You can’t take away people’s hard earned money for no good reason, wars (inc. American revolution) are fought on that issue. It is not a workable solution you suggest.

  18. JamesB says:

    Taking away people’s hard earned money for no good reason, hense also the problems with the CSA also. I have proposed the only workable solution – cheap and affordable prenups on CSA and Marriage. It’s the only way forward that makes sense! I also add that the male pill is coming which will exacerbate the situation and both of yours (valid) concerns over these (cohabiting) people.

  19. Tim Pryce-Brown says:

    Thank you Marilyn,

    I quite agree with you. I wasn’t suggesting that blue collar women should not have a chioce just speculating as to why the Government was not motivated in providing that choice and as you point out dealing with the many social consequences of co-habitation break up. My hope is that we follow the amendments made in Scotland, the data of which appears sparse at the moment and firm things up so that co-habitees at least have a structure in place to make suitable arrangements when their relationship breaks down and not, as it appears, rely on some very inconsistent case law which has resulted in serious injustice (James v Thomas springing to mind).

  20. JamesB says:

    In Scotland you get 50% and max 3 years SM. In E and W, you get shafted. It is not the same.

  21. JamesB says:

    That was max 3 years SM at max 1/3 income.

  22. The First Joe says:

    Let’s keep government and laws OUT of co-habitation.

    Co-habitation is NOT marriage, it’s NOT a civil partnership, it doesn’t come with the same assumptions of co-dependency and it doesn’t currently allow courts and lawyers to get their pound of flesh out of people’s private lives. And THAT is why it’s so popular. People don’t WANT courts and lawyers and police in their private lives!

    The minute the heavy-hand of law starts to squeeze co-habitation for profit is when people will turn away from what is, (right now), the one last bastion of freedom in long term personal intimate relationships.

    If people like you, Marilyn get your way with co-habitation law you will have only succeeded in further dividing and atomising society and preventing people from establishing the intimate relationships they desire.

    They did this in Australia (after 6months living together, you are considered de-facto married) and in British Columbia (after 2 years you are considered the oxymoronic “unmarried spouse”, and THAT change went in RETROACTIVELY!!)…

    Enough. This is a horrible power grab by the state into what is one of the last remaining free parts of life. Leave co-habitors alone.

    Also: your comment that you know of many cohabitors who want to marry but can’t? I assume they mean that their partner will not marry them? Who are you, or ANYONE to force someone into marriage / marriage-lite without their consent? Bad enough that co-habitors have to resist their partner’s pushing to marry and the constant social presumption of eventual marriage – this push for a MANDATORY marriage-lite is beyond the pale.

  23. Me says:

    Knowing what I know now about family law, I would neither recommend marriage or cohabitation for a man – EVER. It is just an all-round trap to get the man paying for the upkeep of someone that the government does not want to pay for. That is the only reason the government supports marriage. My advice would be to always use protection and never succumb to the other person’s wish for a child, unless you want to be screwed later.

  24. Speaking plans for next Monday – 2017-18 C1 Course by MF says:

    […] Articles. Government breaks cohabitation reform […]

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