Sir Nicholas Wall, the country’s most senior family law Judge, gave an interview to The Times last week in which he said ‘I am in favour of cohabitees having rights because of the injustice of the present system’.
The present system does produce results which seem unjust; by which I mean they seem unjust to me as an individual. Divorce law has as its ‘over-riding objective’ the reaching of just solutions, but there is at the moment no separate category of law to which cohabiting couples can turn for an answer, let alone for a just answer. They have to rely on their rights under property law and under the law of trusts and these types of law do not have as their central purpose to deliver socially just outcomes.
So from top to bottom in the legal system we can agree that the present system does not provide justice for many, typically for the long-standing ‘common law wife’ who has given ‘the best years of her life’ to a relationship but has allowed all the assets to remain in her partner’s name and who cannot point to clear evidence of a common intention to share those assets.
But how to change the system? It will require the Government to legislate. Then the questions start. How much of a priority should it be to bring forward what would inevitably be complex and controversial legislation; are there not bigger priorities? How do we define cohabitees, given our capacity for making an endless variety of domestic arrangements? What rights should a former parner have? If those rights should be less than the rights a spouse might have, how much less?
Most family lawyers could rapidly rattle off 20 such questions, or even 50 or more. The system we have got is the one we have got. It is easy to criticise many of our systems but it is often very difficult to think up something better to put in its place.
Reforming this area of family law is something that previous Governments have shied away from, or have paid lip service to. When you get down to the nitty gritty, it is a very,very difficult thing to do. I doubt if anything is going to change for some time and, until it does, we will simply have to make the best of the system that we do have.
Two million of us cohabit and one child in four is born to unmarried parents. My advice to long-term cohabitees is think about having a formal Cohabitation Agreement prepared (this can achieve the clarity and justice you and your partner want for yourselves), or think about getting married (some of us are big fans of being married!) or at least make sure you are sharing your life with someone who truly shares your vision of the future.
