Discussion on LinkedIn Family Law Forum, January 2013
New research by the ONS reinforces need for cohabitation law
New research conducted by the Office for National Statistics has revealed that the number of cohabiting couples has almost doubled since 1996, swelling from 1.5m to 2.9m over a period of 16 years. In addition, the total amount of children being brought up by unmarried cohabiting parents has also doubled and now stands at almost two million, while the number of married couples has fallen by 457,000 over the same period.
Venisha Shah, Family Law Partner at The Law House, London, United Kingdom
I believe that the doubling of unmarried couples (cohabiting) presents family solicitors with a problem that needs addressing with new legislation or legal rights that are currently lacking. The worst part is that often those affected are completely unaware that they do not have the same rights as married couples. I welcome your opinions on a subject that I have a great interest in!
The internet is widely used as the first port of call for many purposes. An internet check on ‘common law marriage’-even in Wikipedia-makes it clear that there is no such concept in England & Wales and that a couple living together has no automatic financial links, liabilities or responsibilities. Clearly information is available.The true situation also arises from time to time with a high profile case such as Jones v Kernott, yet in general terms the public still appears unaware of the situation and it is only when an individual actively seeks legal advice that the reality may become known. I’m not sure that there is a need for protective legislation. There are too many different scenarios to consider. Would there be Human Rights Act cases brought by someone whose relationship ends the wrong side of an arbitrary time limit in such a scenario? As things stand, either a couple opts into a legislative framework, called marriage or civil partnership, or they live together outside of it, i.e cohabitation. Perhaps the greatest need is for better information about the different types of relationship as part of secondary education. The use of pre-nuptial agreements is increasing and this has gradually come through public awareness on a need to protect assets without legislation, as much as through high profile case law. Perhaps the same will eventually happen with cohabitation.
Michael, you (and no doubt many others) say: ‘As things stand, either a couple opts into a legislative framework, called marriage or civil partnership, or they live together outside of it, i.e [‘just’] cohabitation.’ The freedom of choice (which it is, if their choice is fully informed, but so often as you point out it isn’t) argument: let people decide which bed to make and then let them lie in it, even if for cohabitants it turns out to be Procrustean – not to stretch the point. But I suppose it depends from which end you start.
If you start from the proposition that an enduring (or a would-be enduring) relationship should not, in principle, impose any baggage burden on either party at its conclusion, then fine. And to be consistent shouldn’t you then advocate a free-cleanbreak-for-all (no financial responsibility either way) to replace the present post-divorce financial remedies which our laws make available?
If though you regard it as equitable that joining forces, living together, having children, making financial and non-financial contributions to the joint welfare of a partnership … should or at least could give rise to wealth-sharing or continuing maintenance dependency responsibilities to cope with financial or other frailty or imbalance upon separation: then why not adapt your legal system to cater for new (or more prevalent relationship) patterns as they emerge and secure (more or less) societal acceptance?
Ultimately maybe it is a question of fairness, like beauty that indefinable grail always dependent on whose eye is beholding.
Michael – yes information is available but I think the problem stems from, as you allude to, a lack of awareness until legal help is necessary. Education would be welcome, however I still feel legislation to better reflect the ongoing trend against traditional marriage would do well to support the choices that the public are increasingly taking in regards to cohabitation.
Allow me to agree with Michael, and to disagree in part, and with respect, with Venisha, who has raised an important issue.
It seems that the Courts of all countries have started to deal with the financial and other ramifications of couplehood without marriage, and the Common Law tradition provides all the tools necessary to develop an approach to a new problem.
In Israel the Courts (myself included) have used concepts of contract (express or implied), trusts (in particular constructive trusts), and reliance on representations made, analysing the conduct of the parties in relation to these and other concepts. But this is still a work in progress, and thus a rush to legislation is, in my view, premature.
I agree that what is needed is education, in the sense that people entering into relationships of this kind need to be aware that they are getting into largely uncharted territory, until the highest courts have fixed binding precedents, and that a way to avoid the rocks and shoals of litigation is to sign contracts, as early as possible in the relationship.