As has been pointed out here on many occasions, the law in England and Wales does not make proper provision for unmarried couples to unravel their finances at the end of their relationships, in the same way it does for married couples. Married couples can utilise the financial remedy powers of the court, all of which are essentially contained in one place: the Matrimonial Causes Act 1973, as amended. Those who have not been married, however, are faced with a mishmash of assorted avenues of redress which may or may not be relevant to their situation, including Schedule 1 of the Children Act 1989, section 14 of the Trusts of Land and Appointment of Trustees Act 1996 and, heaven forbid, the law of resulting and constructive trusts.
There was a particularly amusing example of the tangled web of law that unmarried couples can face last week, in the judgment S v J and Others (although it was not, I am sure, amusing for the parties themselves).
The background to S v J was somewhat unusual, even if the final circumstances in which the parties found themselves were far from unique. The parties had had a relationship that lasted just under five years, and there were two children of the relationship, now aged 5 and 3. The parties had become engaged in February 2009 and, five months later, had a ceremony of blessing in respect of their intended marriage. However, the marriage was never formally celebrated because the man was unable to secure a divorce from his wife at the time (it seems that there was some dispute over whether the parties had actually married, but in March 2015 the English court made a declaration of non-marriage in respect of the relationship). The relationship ended “in difficult circumstances”, in 2013.
After the relationship ended there remained a dispute between the parties about the ‘beneficial’ ownership of four central London properties which they owned, or in which either or both had had an interest during the relationship. The question was: how to resolve that dispute, when the Matrimonial Causes Act was not available to the parties?
The answer is where I find some (albeit rather grim) amusement: section 17 of the Married Women’s Property Act 1882. The reason for my amusement is twofold. Firstly, that the parties had to rely upon a statute that is more than 130 years old and that was made in an era when ideas of equality between the sexes were, to say the least, somewhat different than they are today. You may already have guessed the second reason for my amusement: how on Earth can an unmarried person utilise a statute that specifically states in its name that it relates to the property of married women? The answer to this confusing conundrum lies with section 2(2) of the Law Reform (Miscellaneous Provisions) Act 1970, which applies section 17 of the 1882 Act to any dispute between formerly engaged couples in relation to property in which either or both had an interest while they were engaged, provided that proceedings are instituted within three years of the termination of the engagement.
That, I’m afraid, is typical of the sort of nonsensical legal gymnastics that unmarried couples have to be put through, just because they didn’t get married (or, incidentally, enter into a civil partnership). I’m sorry, but it really is absurd that anyone going to law should be faced with this sort of thing in the twenty-first century. The time has long-since come for unmarried couples to be given a proper method of resolving their financial and property disputes following the breakdown of their relationships (and before you comment: no, I am not saying that unmarried couples should be given the same rights as married couples).
If you have the time and inclination to wade through all of its 146 paragraphs and 8 footnotes, you can read the full judgment of S v J and Others here.