According to the Office for National Statistic in 2012, there were 5.9 million people cohabiting in the UK, double the 1996 figure. Over the same period, the percentage of people aged 16 or over who were cohabiting steadily increased, from 6.5 per cent in 1996 to 11.7 per cent in 2012. This makes cohabitation the fastest growing family type in the UK.
Has the law kept pace with this social change? All family lawyers know that it has not. Various statutes have given some rights to parties who have lived together for at least two years upon the death of one of them (e.g. the Inheritance (Provision for Family and Dependants) Act 1973 and the Fatal Accidents Act 1976) but where the relationship breaks down instead of being ended by death the parties are thrown back onto the strict law of property. The law of property has moved only slowly to recognise the special circumstances which exist in cohabiting relationships, despite the social changes to family life being recognised by Lord Denning as long ago as the 1960s. Real injustice can result unless judges are persuaded to strain the law or the facts of cases to the limit to achieve 'fair' outcomes.
In July 2007 the Law Commission proposed legislation to empower the courts to grant discretionary financial relief to cohabitants after relationship breakdown. The law in Scotland had already taken a leap forward by that time. In 2006 the Family Law (Scotland) Act 2006 provided cohabiting parties in Scotland with the power to seek financial provision upon their relationship breaking down. The Supreme Court scrutinised the Scottish law in Gow v Grant [2012] UKSC 29 and gave it a broad, purposive interpretation. Baroness Hale called on English law to introduce similar remedies.
So far the Westminster Government has taken no steps to change the law. Personally, I think this is a shameful dereliction of duty. The law does not currently serve the needs of the vulnerable parties to a family very well where the parties are unmarried. Recently Lord Marks of Henley placed his Cohabitation Rights Bill before Parliament as a Private Members Bill. The text can be found here. The Bill does not follow the Scottish model exactly. It is, however, an interesting and potentially useful scheme to obviate the injustice which can occur after long cohabiting relationships end, especially those cases where children have grown up and remedies under Schedule 1 of the Children Act 1989 do not provide a means of meeting income and housing needs for at least a limited time.
The prospects of this Bill becoming law are very, very low given that it is a private members bill, without Government sponsorship and we are nearing the end of another Parliamentary session.
The contrast between the law for unmarried couples in Scotland and that applying to those over the border in England is now very striking. I am sure many non-lawyers. and even many lawyers, will be surprised that the law on such an important social issue is so different in two parts of the UK. In Scotland an unmarried cohabiting couple can, when they separate, go to court and ask that their property is divided in a way which is fair based in what happened during their relationship. In England and Wales there is no such right. In England and Wales when a couple separate each is only entitled to keep what each of them owns according to strict property law. Although the cases of Stack v Dowden and Kernott v Jones have potentially made the law a little more flexible in England and Wales the state of the law still makes cases complicated, expensive and often results in real unfairness to one or other of the parties. It is not the only big difference between family law in England and Scotland: financial settlements after divorce are also very different, but that can be the subject of discussion some other time.
The Law Commission has already recommended a system similar to the Scottish system for England and Wales. The Supreme Court has called for similar legislation. So far the Government has refused to commit to any such new laws. Why? Presumably they fear being portrayed as being ‘anti-marriage’. It is often said that 'there are no votes in divorce.' The 2011 census shows that fewer people are getting married. More are choosing to cohabit. The need for legislation is stronger than ever. At the moment it is not even on the horizon.
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