Article in North East Times
How often do we read about a ‘common law wife’ or ‘husband’ in the newspapers? Common law
marriage was actually abolished in the 1750s. Yet according to a recent survey on social attitudes,
many believe it is alive and kicking with ‘common law’ spouses having legal rights. They do not.
Cohabitation is on the increase. In the 1960s, just two per cent of people cohabited compared
to now, with at least 70 per cent of couples cohabiting before or without marriage. Marriage
rates continue to fall, so it is time that our legal system began to recognise that this is the reality.
Cohabiting couples are often left without any legal protection if their relationship breaks down.
Resolution, the organisation for family lawyers of which I am a member, can point to many cases
of those who have found themselves, after years of cohabiting, without money and without a roof
over their heads (or those of their children) following separation. Resolution aims to find
solutions that consider the needs of the family in a non-confrontational manner, so I was delighted
to see a recent interview in The Times by Lord Justice Wall calling for reform.
Sir Nicholas Wall is the president of the Family Law Division. He maintained that “women
cohabitees are particularly disadvantaged” and that unmarried partners should be given the right
to each have an equitable share of assets and money should the relationship break-down.
Wall cited one recent case when a house was bought by an unmarried couple jointly. “They had
lived together for ten years and had children. The judge divided 90 per cent to the man and ten per
cent to the woman. We (the Court of Appeal) reversed it and said it should go 50/50. The case is
now going to the Supreme Court.”
Nigel Shepherd, Law Reform Spokesman for Resolution, recently appeared on Channel 4 news
to talk about the proposed reforms for cohabiting couples. He said that new laws should act as a
safety net and prevent injustice, by allowing the courts to recognise a cohabiting relationship
decide on an outcome which is fair and reasonable. His opponent, Dr. Catherine Hakim of
the LSE was uncompromising, saying that if people wanted legal protection they should
marry and get their relationship ratified by the law. This is all well and good, but it is not what is
happening in reality. It was interesting that Dr Hakim clearly believed that introducing
cohabitation law would devalue marriage per se, but hers was a cold and intellectual argument.
I practice Family Law every day and believe that Family Law should regulate the family as it is, not
how an academic would like it to be.
As more people decide to cohabit rather than marry, for whatever reason, it is right that
cohabitation rights are improved. The law as it stands is unfair and is in need of a 21st century