The government has announced that it does not intend to implement the recommendations made by the Law Commission that the law in England and Wales relating to cohabiting couples should be reformed.
This is a very disappointing decision by the coalition, although not particularly surprising. The Centre for Social Justice (then led by Iain Duncan Smith, now Secretary of State for Work and Pensions) came out against reform a couple of years ago. It concluded that reforming the law would undermine marriage.
In my view, this is a spectacularly short sighted decision by the government. It naively believes that by keeping the law as it is, more people will marry rather than living together. The reality is that society changes and the law needs to keep pace with it. More and more people are living together and never marrying.
Many people believe (wrongly) that if you live together for long enough, you eventually become a common law spouse, with the same rights and expectations as a married couple. In fact, common law marriage was abolished about 250 years ago, but the myth of the common law wife or husband has lingered on in the public consciousness since then.
The frightening reality is that it is entirely possible that at the end of a long relationship, when you might have made all sorts of contributions of a non-financial nature, you might be left with nothing, simply because the house is owned solely by your (now ex-) partner. Nor would you be entitled to any maintenance, even through you might have given up work years ago in order to become a full-time housewife.
If you had been married, you would have been entitled to a share of the assets that would have achieved fairness and met your needs as much as possible. You might also have been entitled to maintenance.
The current law can lead to horribly unfair results. Couples can generate differing shares of the purchase price of a jointly owned property, but because they tell the conveyancing solicitor that they will on it as joint tenants (the way in which most people jointly own properties), when they separate, they are get half each, even though they paid different amounts towards the purchase price or the mortgage.
The situation is not quite so bad for couples with children. The parent with care of the he children will be entitled to child support (although they may have to rely on the utterly useless Child Support Agency to get it) and if that is not enough to meet the children’s needs, they might be able to make a claim for financial provision for their children under the Children Act 1989. The trouble is, the Act is a pretty hopeless way of doing this, and the court’s powers are far more limited that they are in divorce proceedings.
The Law Commission report recomended that financial awards would be based on contributions made to the parties’ relationship. Couples with children who had been together for either 2 or 5 years (parliament was to decide how long) woud be able to claim maintenance.
The Minstry of Justice says “The government is committed to transforning the family justice system, including greater use of mediation for married or cohabiting couples, which can often be quicker, cheaper and less traumatic than going to court.”
Balderdash.
Iam a mediator. Mediation is a wonderful thing. It is a fantastic way to resolve disputes, although there are other very valid ways to do it such as collaborative law or, if necessary, court proceedings. It is not a susbstitute for sensible laws. The government’s response is downright disingenuous. Dispute resolution techiniques have to work within the existing law; if the law is bad to start off with, you are not likely to get a fair result in mediation or at court.
Laws should be fair. The current law simply isn’t.