Cohabitation - the need for legal reform

Another argument is that the law of property, which cohabitants must use to determine property disputes, is unsatisfactory and their property rights should be determined by a family law, not a property law regime. The central belief is that cohabitants are able to protect themselves against economic disadvantages through measures such as placing property in joint names. However, this belief has proven not always to be of actuality and has been proven in cases such as Stack v Dowden and Kernott v Jones. In the case of Stack v Dowden, unequal shares were declared on the basis that the parties kept their financial affairs separate and the claimant made greater financial contributions. In Kernott v Jones, the trial judge ruled that the claimant’s investment towards the purchase of the property, particularly since separation, meant that she was entitled to a greater share. In addition she received very little contribution from the defendant to the maintenance and support of the two children. In evaluating these cases, there is evidence to suggest that the law relating to property seems somewhat confused and may differ depending on the circumstances of every case. This point in turn, ties in with the current law on resulting and constructive trusts. A party contributing financially would be entitled to a share in property, however, the Law Commission argues that constructive trusts cannot accommodate ‘contingent’ intentions and that the Court is unable to substitute its views of what is fair, but must adhere to the intentions of the parties. In evaluating this point, it is presumed that regardless of the financial contributions made in a cohabiting relationship, the rights that cohabitants may think they have in equity, is in fact not always the case and in actuality, economic disadvantages may still occur irrespective of a joint tenancy being in place or not which would be defeating the whole purpose of what is called ‘equity’ in terms of being fair, just and impartial. Baroness Hale commented on this subject by stating “There is some reason to think that a family law remedy such as that proposed by the Law Commission would be less costly and more productive of settlements as well as achieving fairer results than the present law”.    

Although limited, cohabitees do in certain circumstances; have rights to seek financial provision where children are involved. Cohabiting parents have the same rights and responsibilities to their children as married couples. They also have the same right to apply under section 8 of the Children Act 1989 for an order of residence. In acknowledging this point, it can be argued that there would not be such a need for reform in this area if they have virtually the same rights as married couples regarding children. However, Baroness Hale disagreed with this point by stating “it is entirely fair that he should compensate the children’s carer for the disadvantages that she has suffered”.

It can be argued that some of the individuals that choose to cohabit may not want the formality or legal obligation that the state may impose on them if entering into a marriage or civil partnership. Furthermore, it can be added that if cohabitants are desperate to obtain such a right, it would be appropriate to conform to the nature of entering into a legal relationship. Conversely, The Law Commission argued this point by stating that many cohabitants think it wrong to marry purely for legal or financial reasons and they may not be willing to get married unless they can do it ‘properly’. Baroness Hale in the judgement held in Gov v Grant, stated that “For many couples, cohabitation is a preliminary to the marriage they hope to enter into one day”.  In agreement with this point, it is also necessary to consider the financial responsibility involved in entering a marriage or civil partnership and whether individuals have the capability to engage in such.  Simultaneously, it is imperative to point out the fact that there are several terms that need to be adhered to if considering planning a marriage or civil partnership, which some individuals may find strenuous and time consuming.  I.e. you are required to give at least 15 days’ notice to the registrar before proceeding with the ceremony. On the other hand, it can be argued that it is easy for a court to identify a marriage certificate; but it may be much more difficult to pin down precisely what amounts to a relationship of cohabitation. The Law Commission stated in its report, that persons should not be eligible for financial relief unless they have lived together as a couple in a joint household, for a set duration referred to as the ‘minimum duration requirement’ which is recommended between 2-5 years. The cohabitation bill was also in agreement with the Law Commission in stating that the parties must either be the legal parents of a minor child, or have a joint residence order in respect of a child, or have lived together for a continuous period of at least 2 years. It can be argued whether it is necessary to impose such requirements on individuals that may like the idea of not having any legal commitment to their partner and like the sense of freedom that cohabitation may provide them with as they are unsure of the length their relationship will last.

There are many circumstances where one cohabitee has relied heavily upon their partner and has been at an economic disadvantage on separation. A classic example of this point was picked up on in the case of Gov v Grant. Here, the Supreme Court’s decision was in favour of the claimant as she has suffered an economic disadvantage by cohabiting with her partner. Therefore, it can be argued that as there are insufficient legal remedies covering this issue, it could put a strain on the benefit state. Baroness Butler-Sloss said in a recent House of Lords debate on cohabitants relying upon their partner that “She becomes a burden on the state” The Law Commission has suggested ways for this to be remedied one of which involved an ‘opt in’ in scheme which would require couples to register in order to claim financial remedies on separation. However, there is evidence to suggest that as some couples still believe in the ‘common law marriage’ myth, it would be unlikely to assume that these same couples would engage in such a scheme.  

A statement by junior Justice Minister Bridget Prentice concluded that the government has reached a decision to take no further action with regards to the need for reform as they would need to obtain accurate estimates of the financial impact of a new legislation. Baroness Hale was clearly not in agreement with this statement by stating “there is, so much as I am aware, no published research commissioned by the Scottish Executive into the costs and benefits of the Scottish scheme”. Therefore, it can be assumed, that the government may not want to spend time reforming the law on cohabitation and as they may feel that there are a lot of other factors that need to be taken into serious consideration before taking steps to reforming the current law on cohabitation. It can also be argued that if the current law on cohabitation were to be reformed, it would cause a major backlog in The Courts. However, Baroness Hale cleared up this presumption by stating “the introduction of broadly similar provisions in England and Wales would not place significant additional demands on court and legal aid resources.”

In conclusion, it is quite clear that there are various opinions and views for and against reform relating to cohabitees. Whether the decision to actually take steps in reforming the law would be for Parliament to decide on, however, it is also clear that some of the issues raised on cohabitation cannot be avoided or ignored especially due to the increasing number of cohabiting couples and the breakdowns of them. Therefore, it is necessary for government to look into some of the more pressing issues on cohabitation in order for it to be dealt with accordingly.

 

         

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