Despite Grand Designs, Cohabitee Financial Rights Are Still Elusive 

Published on 03 September, 2019 | Katie Welton-Dillon

One of the reasons many in the legal profession specialise in Family law is that it touches the lives of so many individuals.

Take divorce, for example. The most recent figures released by the Office for National Statistics (ONS) reveal that there were 101,669 divorces in England and Wales during the course of 2017 (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2017).

That number might well represent a drop of nearly 40 per cent since 1993 – which was the highest total ever – but it still indicates just how common divorce is compared to 1858, the date of the earliest available ONS record on the topic.

Even though that year saw just 24 divorces, it marked something of a watershed after a significant shift in the law.

The Matrimonial Causes Act of 1857 was the first piece of legislation to introduce divorce by decree of the civil courts, albeit only on the grounds of adultery (https://www.perfar.eu/policies/matrimonial-causes-act-1857).

That the Act was passed at all was attributed, at least in part, to the efforts of a woman named Caroline Norton, who had no recourse to the courts when she was denied financial support by her husband. Their marriage had ended in acrimony and allegations of infidelity reaching to the very highest levels of British government.

Mrs Norton, denied access to her children as well as any cash, took her campaign to none other than Queen Victoria, complaining in a letter of 1855 about the “grotesque anomaly which ordains that married women shall be ‘non-existent’ in a country governed by a female Sovereign”.

I was reminded of Caroline Norton’s case having read recently about the purchase of her in-laws’ former stately home by a woman left in a considerably healthier financial position as a result of divorce.

Valeria Sykes is reported to have spent £70 million of the settlement received from her entrepreneur ex-husband restoring Grantley Hall in North Yorkshire (https://www.dailymail.co.uk/news/article-7038497/Brexit-tycoon-Paul-Sykess-ex-spends-70m-restoring-grade-II-listed-manor-house.html).

Although the amount of gender equality and the potential financial outcomes associated with divorce have changed dramatically over the 180 years between the end of both women’s marriages, the relevant law has not necessarily moved on by that large a degree.

It might surprise some to learn that the most recent divorce laws enacted have, in fact, been in place for almost half a century.

In recent months and under pressure from campaigners who believe that the Matrimonial Causes Act of 1973 has failed to keep pace with developments in homes and the divorce courts, ministers have shown a willingness to change.

The Divorce, Dissolution and Separation Bill allows for so-called ‘no-fault’ divorce, removing one of the sources of conflict between separating spouses; namely, the need to allege bad conduct, such as adultery or unreasonable behaviour, when petitioning.

Justice Secretary, David Gauke, presented the Bill to the House of Commons in June, boasting that “this important legislation…will make a genuine difference to many children and families” (https://www.bbc.co.uk/news/uk-politics-48629318).

Yet Mr Gauke’s comments jar when examining efforts pre-dating his ‘no-fault’ proposals which also aim at making a positive difference to families.

A Cohabitation Rights Bill tabled by Lord Marks two years ago is almost in a state of suspended animation. If it became law, it would allow for unmarried partners to apply to a court for a financial settlement should their relationship break down.

It remains trapped, though, in the parliamentary machine, awaiting a date for the Committee Stage in the House of Lords (https://services.parliament.uk/bills/2017-19/cohabitationrights.html).

I believe that it’s arguably just as important as divorce law reform for a couple of reasons.

Firstly, there is the persistent and erroneous myth of the ‘common law spouse’, the idea that individuals who’ve not exchanged vows can already make a claim on their partners if they go their separate ways.

Secondly, data released only last month by the ONS underlines how cohabitation is the fastest-growing family type in England and Wales. The number of cohabiting couple families now stands at 3.4 million – up 25.8 per cent in only a decade (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/2018).

Currently, they have none of provisions afforded to married couples and have to resort to property law to redress what Lord Marks’ Bill describes as the “economic disadvantage resulting from the period of cohabitation”.

Consider the potential financial consequences of the collapse of those relationships not just on the adults involved but children and the complications are multiplied.

The situation underlines how English family law may have moved on from the days when Caroline Norton felt compelled to put pen to paper but still has a long way to go if it’s to accurately reflect society today.