As we’ve mentioned in recent monthly Roundups, the government is currently consulting on three linked areas of family law under the title ‘A fairer end to relationships’. The consultation closes on 14 August.
1. Financial remedies on divorce/dissolution – Although a statutory legal framework for financial remedies for divorcing couples has been in place for more than 50 years, research and work by the Law Commission have identified how uncertain this can be for negotiating couples. Legal principles of ‘needs’ and ‘sharing’ have been developed by judges in more recent years, when applying the legislation. Government now propose putting these concepts on a statutory basis. The idea is to make the law clearer.
2. A new statutory framework of rights and responsibilities for eligible cohabiting couples when they separate. This framework would offer clear and consistent protections.
3. Modernising the law affecting cohabitants on intestacy and on access to financial provision from a deceased partner’s estate.
It’s the ideas about cohabitation and separation that seem to be causing most debate. A recent broadcast on Woman’s Hour (15 minutes in) highlights the unfairness of the lack of a legal framework for the financial consequences of a couple separating if they weren’t married, especially when a mother has fallen back in her career and pension entitlement.
Mandip Ghai, a solicitor from Rights of Women appeared on the programme. In the consultation response, RoW are calling for:
- domestic abuse to be fully reflected in decisions about eligibility, financial remedies, safeguards and access to justice;
- courts to have effective powers to prevent the new legal framework being used as a tool of post-separation abuse or coercive control;
- safeguards to ensure that any opt-out agreements are not binding where they were entered into because of domestic abuse, coercion or a lack of genuine consent;
- a framework that is capable of achieving fair outcomes for survivors, recognising the long-term economic impact of domestic abuse and the economic consequences of caring responsibilities and relationship-generated disadvantage; and
- reforms that work for all survivors, including Black and minoritised women, migrant women and women whose relationships are recognised only through religious marriage ceremonies.
Back in 2019, we wrote a guidance note on the myth that there was such a thing as a ‘common law marriage’. While that myth may have lost its hold, it’s still unlikely that many of the 3.5 million cohabiting couples in England and Wales are planning for a possible financial future post-separation.
The proposals would keep cohabitation law different from divorce/dissolution where the court can look at ‘needs’ and ‘sharing’, because only ‘needs’ would be considered for cohabitees. Couples who live together for three years and/or who have a child together would automatically come within the new framework, unless they choose to opt out.
Any changes won’t come in for quite a few years because there’ll be the usual lengthy parliamentary process to introducing new legislation.
Is this a challenge to personal autonomy?
If people don’t choose to marry, why should the State impose marriage-like responsibilities on them?
In The Guardian, Baroness Deech said: David Lammy’s proposed cohabitation law would be bad for couples – and worse for some women
‘ministers have paid remarkably little attention to another: the millions of divorced and widowed women who have consciously chosen financial independence. They may have secured homes, pensions and assets through divorce settlements, or inherited family property, and have children and grandchildren they want to provide for.
For these women, some of them vulnerable, cohabitation is a safe space – companionship without financial integration or legal obligations. So what happens if a coercive partner refuses to opt out of the government’s proposed scheme before three years of living together? Under the government’s plans, the woman would face a brutal choice: accept being automatically included in the scheme and hope for the best, or leave the relationship.’
The Guardian published two letters in response on 20 July – Will a cohabitation law be bad for couples?
Jo Edwards, a solicitor who has been at the forefront of law reform, responded that too many vulnerable people have no legal protection when a partner leaves or dies:
‘The law must reflect modern life. Many couples raise children, share finances and build lives together without marrying, sometimes for cultural, personal or financial reasons, and often because one person doesn’t want to marry. That should not mean that the financially weaker party is left facing hardship.
Reform is also essential for victims of domestic abuse. Many remain trapped because they simply cannot afford to leave an abusive relationship without any legal or financial safety net. A clear legal framework should provide greater certainty and fairness while remaining straightforward enough for people to navigate.’
On the other hand, academic Rosemary Auchmuty wrote that the proposals were outdated and patronising:
‘cohabitants choose not to marry for many different reasons; they are not always ignorant of the law and may be rightly suspicious of just how protective court-sanctioned divorce-like settlements will be.
It is always better to have one’s own assets than to rely on a partner who, statistics show, may not always be there, or always solvent, and better to have one’s independent rights than to look to the courts for a remedy that history shows is rarely generous to women.’
Comment
While these proposals seem to present a distinctive two-tier system where a married partner will be treated more generously (a starting point of ‘sharing’ matrimonial property) than a cohabiting partner (whose ‘needs’ will be considered), in reality the difference will probably only count for very wealthy couples. As the research has made clear, only a minority of separating couples have enough wealth to make ‘sharing’ a realistic starting point.
Image: Thanks OTA Photos; creative commons licence, Flickr
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