No fault divorce and extending civil partnerships are a good idea, but further reforms are needed

These are heady times for family lawyers. No sooner had the government announced that it was in favour of introducing no-fault divorce, then hard on its heels came the announcement from the equalities minister, Penny Mordaunt MP, that the government would extend civil partnerships to heterosexual couples.

Civil partnerships are currently a weird anomaly in English law. First introduced in 2005 by the Blair government, they became potentially rather redundant when gay marriage was introduced by the coalition government in 2014. It became a very rare example of a minority who had historically suffered enormous discrimination now enjoying greater rights than the majority because while gay couples could choose between a civil partnership and marriage, heterosexual couples could only marry.

It is tempting to think that it does not matter. After all, the legal difference between marriage and civil partnerships is tiny; off the top of my head, terminology aside, the only difference that I can think of is that, unlike marriage, a civil partnership cannot be ended on the ground of adultery. That difference will vanish as result of the introduction of no-fault divorce. There are some other extremely technical differences, but nothing that makes much real difference in the real world. But it simply doesn’t make sense to say that civil partnerships should only be available to gay couples.

Not that we should expect there to be a surge of heterosexual couples now deciding to formalise their relationships by entering into civil partnerships. The number of new civil partnerships dropped like a stone after gay marriage became possible. Moreover, many civil partners availed themselves of the opportunity to convert their civil partnership into a marriage, which is very straightforward administrative process without the need for the formality of a ceremony.

It is worth noting that another big piece of family law news in the past couple of weeks has the been the latest divorce statistics. The number of divorces continues to fall. (This often comes as surprise to many people; I am always being told by people that the divorce rate is rising, when in fact it has steadily declined since the 1990’s). The most obviously explanation for the decline in divorces is that fewer people are marrying in the first place.

The fact is that the law that deals with the rights of cohabiting couples is woefully deficient. Far too many unmarried couples believe that if they cohabit, they are in a common law marriage and therefore enjoy similar rights to married couples. In fact, common law marriage is not recognised in English law. Simply living together does not give a couple any rights at all. This can all too frequently lead to a very unpleasant surprise when a relationship ends and one partner can find that he or she is entitled to far less (or far more) than they expect. Sometime they can get everything and sometimes, they can get nothing at all.

There are two ways that former cohabiting couples can make a claim for a share of their ex’s assets. Firstly, or she might possibly be able to make a claim against the family home. This is easier where both parties are registered owners, although the court may not have sufficient discretion to achieve a fair outcome. It is much more complicated where one party is not on the title. Sometimes they can make a claim, sometimes they cannot. It all depends on the circumstances of the case. Even if they are entitled to an interest, it may not reflect what they feel is fair.

Secondly, if the couple had children, one parent may be able to make a claim for financial provision for the children under the Children Act 1989. The court can order the other parent to pay lump sums or school fees, additional child maintenance (if the CMS assessment is not enough or it has no jurisdiction) and can order a property to be transferred to meet the children’s needs.

However, this is about meeting the children’s needs and nothing more. It is not about a achieving a fair division of assets and, most importantly, the claim is for the benefit of the children and not the parent with whom they live. As a result, where a property is transferred to provide a home for the child, it is returned to the original owner once the children are 18.

The very restrictive nature of the law, and the lack of discretion that the court enjoys can lead to some unjust outcomes. The following scenario is one that I have seen on a number of occasions. A mother consults me. Her relationship with her boyfriend has ended. She and her children have lived with him in his house for years. He always paid the mortgage, and all the bills. Her contributions were that of a housewife. The children looked upon him as their “Dad”. Now the relationship is over, he wants her and the children out. She wants to know what she is entitled to.

I have to advise her that she is entitled to nothing. At most, she is entitled to reasonable notice to quit, but her status in law was that of a lodger. She had no security of tenure. She could apply to the court for an order allowing her and the children to remain at the property for a period of 6 months, extendable once for a period of a further 6 months, but that is at best a short-term solution to her problem. She does not appear to have a claim for a beneficial interest in the property as I can see no evidence of any agreed intention to share the ownership of the property or any contributions to its purchase price or mortgage. She cannot seek child maintenance from Child Maintenance Service, nor can she make a Children Act financial claim, as the children are not his. There isn’t much that I can do to help her.

I am not suggesting that simply cohabiting should automatically provide couples with the same rights as a couple in a marriage or civil partnership. I accept that they should not have the same rights and expectations, but their rights should be clearer and there should be a better way of achieving a fair outcome than the current system.

The Law Commission recommended changes to the law relating to cohabitants in 2007. The Labour government at the time looked favourably on it initially, but then the issue was put on the backburner while they waited to see how some reforms being introduced by the Scottish government worked out. Then Labour lost the 2010 election and the Conservative-Liberal Democrat coalition came to power. Conservatives are never keen on changes to the law in this area as they often suffer from an automatic kneejerk reaction that to reform the law will somehow weaken marriage, despite a lack of evidence that the current law encourages people to marry. The issue was largely forgotten about it by politicians, although the Lib Dems did include it in their 2017 election manifesto.

The Law Commission recommendations made a lot of sense. It recommended that where a couple had children or had cohabited for a minimum period of years, then they ought to be able to make a financial claim. It also recommended that there be an opt out system so that that couples who did not wish to find themselves facing possible claims could agree (presumably in a Cohabitation Agreement or similar) that they would not be subject to these types of claims. Just living together would not be enough; there would have to be some kind of qualifying contributions. The Law Commission recommended that:

“In broad terms, the scheme would seek to ensure that the pluses and minuses of the relationship were fairly shared between the couple. The applicant would have to show that the respondent retained a benefit, or that the applicant had a continuing economic disadvantage, as a result of contributions made to the relationship. The value of any award would depend on the extent of the retained benefit or continuing economic disadvantage. The court would have discretion to grant such financial relief as might be appropriate to deal with these matters, and in doing so would be required to give first consideration to the welfare of any dependent children.”

I suspect that the arrival of no-fault divorce and extending civil partnerships may be about as much as the conservative backbenches can tolerate. There are already mutterings about this from the Conservative right, most notably Sir Edward Leigh, who has always opposed divorce reform and who is now arguing that if civil partnerships are to be allowed, then they ought to be possible for siblings who have always lived together.

I think that is a pretty fatuous suggestion. Siblings who share their own home do have a problem; when one of them dies, the survivor might end up with a big inheritance tax bill and might have to sell their home in order to pay it. There is, I accept, probably a need for reform here, but that should be in the form of a tax break, not by allowing them to enter into a civil partnerships. I suspect that some of the proponents for them having civil partnerships are motivated more by a desire to devalue civil partnerships than anything else, in the hope that proposing something outlandish will scupper the reforms. The issue is important, but it is a separate issue and should not get muddled up with civil partnerships; sibling civil partnerships could conceivably weaken marriage as civil partnerships are largely marriage by another name. The argument is therefore illogical; civil partnerships for siblings could achieve precisely what they claim they want to avoid.

In the meantime, some commentators have pointed out that as it is possible to convert a civil partnership to a marriage then, once they are available for heterosexual couples, will it then be possible for convert an existing marriage to a civil partnership? Frankly, I have no idea, but it would be an excuse for a party, if for no other reason.

7 October 2018

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