ANDRZEJ BOJARSKI
FAMILY LAW BARRISTER, ARBITRATOR AND MEDIATOR
  • Home
  • Family Lawyer
  • Dispute Resolver
  • Blog
  • Publications
  • About Me
  • Contact Me

When love goes sour…At Least One of You might be better off in Scotland

3/15/2014

1 Comment

 
Picture

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.

1 Comment
best essay writing service link
7/16/2019 04:05:59 am

Love is such a vague concept. I do not want people to just tell what love means, because, there are a lot of theories of what love can mean. Each person has their understanding of love and I just want to share mine. Personally, I believe that love is about what you feel towards a person. Love does not necessarily mean romantic for me, in fact, I can love my friends and families more than I love a person of the opposite gender.

Reply



Leave a Reply.

    Andrzej Bojarski

    is an experienced family and divorce lawyer with an international profile as an advisor and advocate in the most difficult family cases. He also applies his skills to resolving family disputes by alternative dispute resolution.  Regularly called upon to lecture and write on family law issues around the world, he also provides legal commentary by social media.

    © Andrzej Bojarski. Unauthorized use and or duplication of the material contained on this blog without permission from this blog's author is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Andrzej Bojarski with appropriate and specific direction to the original content.

    Archives

    March 2020
    February 2020
    August 2018
    April 2018
    September 2017
    March 2017
    June 2016
    December 2015
    November 2015
    October 2015
    June 2015
    May 2015
    September 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014

    Categories

    All
    ADR
    Arbitration
    Brain Tumours
    Charity
    Child Arrangements Programme
    Children
    Cohabitation
    Common Law Marriage
    Conciliation
    Dispute Resolution Appointment
    Divorce
    Family Arbitration
    Family Court
    FHDRA
    Forum Shopping
    International Divorce
    Jungfrau Marathon
    Living Apart
    Living Together
    Mediation
    MIAM
    Negotiations
    No-nup
    Principal Registry
    Private Judging
    Privilege
    Putting Off Divorce
    Separation
    Separation Agreement
    Seperation
    The Family Home
    Without Prejudice

    RSS Feed

    This website may use cookies to provide you with the best possible visitor experience. By continuing to use this website you agree to the cookies policy.
Proudly powered by Weebly