Marilyn Stowe talks: the plight of the cohabitant

Cohabitation|Family Law|July 14th 2016

Yesterday the Office for National Statistics published its latest set of marriage statistics and I doubt many family lawyers were surprised by the key finding: a further rise in the number of people living together. Last year 9.5 per cent of everyone over 16 was doing so, while the number of married people had fallen by almost a whole percentage point – from 51.5 per cent in 2014 to 50.6 per cent last year.

We’ve seen a steady shift in this direction for years now. If you want to avoid the potential financial consequences of divorce the best approach is to never get married in the first place of course – and it seems ever greater numbers are voting with their feet and doing just that. But there is a downside to all this new-found freedom: if you are the financially weaker party in a cohabiting relationship, your partner is under no obligation to acknowledge the time you have devoted to the relationship or the sacrifices you may have made – for example, giving up work to raise the children. They can simply leave, and with no cohabitation law in England and Wales, you may be left with very little. Can that be right?

In this new video I take a look at this pronounced social shift, compare English and Scottish approaches to this complex issue and ask whether it is finally time to consider the plight of the cohabitant.

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.

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  1. spinner says:

    People are choosing not to get married because they don’t want to deal with the legal and financial fall out as you have made the system so bad that it’s just not worth it and people have seen what you have done to their parents and damage you have caused to their childhoods. What on earth makes you think that people want to invite you into their private lives again, if people want you involved in their lives they can choose to get married otherwise I would take it as a pretty strong hint that they don’t. Children are already covered by the CSA and if funds are available by court action to secure housing during their minority and so you are just talking about another way to take funds from one adult to another, give it a rest.

    • Marilyn Stowe says:

      Dear Spinner
      Thanks for your comment. I have many clients consult the firm who are unmarried, have invested in their relationship, had children but the other party has walked away, traded their partner in for someone new and moved on with the “fruits of the relationship” in monetary terms. I know you will say hard luck. I see it instead as unfairness in real practical terms and rather than throwing that person and the children onto the State, it needs rectification.

      • spinner says:

        No I wouldn’t say hard luck I would say that both partners understood the nature of their relationship, everyone knows what marriage is and how to get married it’s no secret. We need to encourage people to have relationships, live together and to have children and adding something that people clearly don’t want into the mix is just going to discourage them from remaining in or starting those relationships. Leave people be to do their own thing how they want to do it. You come across as very nice but this wish to impose what you view as what a relationship should be is very Mary Whitehouse.

      • Luke says:

        Marilyn, you will not be surprised to learn that I agree with ‘spinner’ – & in the sort of cases you describe it is not just “hard luck”, it is usually ignorance.
        What we should have is compulsory classes in the penultimate year of secondary school educating children on the likely outcomes of marriage and divorce and cohabitation. If the legal profession as a whole REALLY wanted to solve the problem then it would campaign for such a change – but it doesn’t do that because unlike Legal Aid (which they were out on the streets for) there would be no money in it for them.
        Of course I understand why – their members have mortgages and private school fees etc. to pay and the public ignorance about divorce massively benefits them. Instead the only thing I continuously hear from the legal profession is attempts to force marriage or marriage-lite on people through the backdoor via cohabitation – forget about pesky marriage contracts – who needs them ? We are the courts and want to rule your lives and add more uncertainty of where you stand (and make money out of it) without them !
        It’s human nature to do this and it doesn’t make the legal profession evil, just average and looking out for their own interests.

  2. Andy says:

    This should be more available to all parties that chose to live together but the big shift in trends is never to get married and on the back side to it all is as previously commented on Children if any see the damage and fallout of the traditional marriage break down…
    The next generation of young children most probably not chose to get married,the fall out will be reduced…the legal costs reduced and the time span reduced for arguing etc.Typically of this trend the law will change as all governing bodies seek to change when things such as cohabitation become more popular…with a nack of introducing costs to support the trend..Let’s say cohabitation levy!!!!.
    What I want to see is a time span put for divorce that will sort out stupid arguing and then both parties get on with their lives…sadly though this will not happen…
    In short don’t get married.

  3. D says:

    Interesting article and I think we May have some movement on this at some point.. it will be very interesting to see what is done and potentially how it might affect existing ‘non-existing common law arrangements’. From my (bad) memory Scotland’s approach looked fair enough if I understood it; it does make a distinct between those marrying and those co-habiting.
    The example (and emotive language used) given doesn’t surprise me; it usually wheeled out and allows us to conveniently prejudge and assume to the motives of those involved in divorce. I’m sure there are many different initiating reason for divorce and from both camps. For example it’s easy to find examples on netmums of ‘I’m married with children and have realised I’m not longer in love my husband, don’t want to be married.. what do I do?’
    We’re also looking a looking at marriage/divorce law routed in a (hopefully) passing era. Again as I’ve said many times before. I’m allowed to have my own opinions on how a relationship would work for me… and that for me means that the idea of another able-adult becoming dependent on other is crazy. I wouldn’t want to have children and not share 50% of the child care arrangements and 50% of the financial responsibilities. Any long term relationship I’d make this pretty crystal clear at the start. Which might well answer the question should you marry someone not as rich as you?

    Common law marriage is a myth and again it’s all very well quoting how people think it’s something real. But to be clear I don’t think people understand that marriage potentially means a responsibility to a partner financially for life. This is regardless of the other party decides they want nothing more to do with the ‘stronger’ financial partner. This leads to potentially becoming income support, housing provider, pension provider where no other attachment exists. Child care is something separate.
    I’ve someone doesn’t want to make that deal, then don’t force them. Granted the other partner should be aware / not be expected to compromise themselves in that context. Cohabitation agreements make sense.. it would be better to have people drawing up these clearly at the point of co-habitation beginning and making it clear it’s cohabitation and dealt with expectations at that point. Maybe start putting the question (as an ad in the footer ) of ‘Have you drawn up a co-habitation agreement?’ on council tax bills, utility bills etc. when two people live together.
    Marriage might mean promising ’till death do us part’ but one party is only 50% of that promise and has absolutely no control over the other 50% of that. To not understand this and the consequences in divorce before entering into this is delusional. After having a pretty beige spiritual experience and watching the treatment by the church of relatives desire for union, I’m not particularly bothered about having a union recognised in the eyes of ‘Father Christmas for Adults’ anyway.

  4. D says:

    I wonder though, the real question being, if a co-habiting couple had an agreement (something like a pre-nup which covered a number of things) didn’t conflict with law at the time it was drafted, advised on and signed how would new laws affect it?
    Would it become invalid on the new laws being introduced, or be open to challenged based on new laws or indeed would a co-habitation law be applied effectively retrospectively or something else?
    Sounds an interesting question (in my view anyway 🙂 )

  5. lee says:

    This situation is so paramount to myself at the moment. I was with my partner 12 years and contributed so much to the family . He does not reach maximum top for csa but diverts probably £ 1500 a week. The csa say that any evidence is ‘old’ they are utterly ignorant and i have even been told that ‘i get more than more’ . It is infuriating. I have also been told well if you go to hmrc you may end up with nothing and keep quiet ! i have submitted schedule 1 and this government gives them no jurisdiction to do a top up as you know. The judge told me to write down LAGUNA. CSA are rubbish and court have no jurisdiction. So the £200 i get a week does not cover food bills and clothing my ex is going all over the world and spending like a nutter. Why is their nothing we can do and why has this loop hole never been addressed ! CSA are a waste of space as they have no jurisdiction to look at all bank accounts and look at diversion. They are just not interested ! they can not even question why he has no benefits yet i know of 2 cars that are benefits including the company diesel used as personal . They are ignorant and our children suffer . Schedule 1 has loops holes for maintenance if they are not accessed . Why ? why is nothing being done .

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