Will Cohabitation Laws Be Reformed? – The FJC Debate 2023
And so we debated again the question we keep raising in its various forms (but essentially “do our current law for cohabitants need to change?”). This time it was in Court 4 of the Royal Courts of Justice, generously hosted by the Family Justice Council. Again and in a way that I can never understand the voting was relatively evenly split. Clearly it needs to change – the “what to” should be what we are now debating.
I do wonder, though, whether the voting sometimes reflects the nuances of the question rather than the essential of whether cohabitants are currently poorly served by law which seems to be given a broad “yes”. Even the “no-change” lobby went as far as to suggest that change of some sort was needed: extended rights (i.e. beyond the child’s university years) should be given to parents (more technically “extend the schedule 1 jurisdiction”).
Forty years into my career and despite being a Resolution-accredited specialist, I struggle with the law and to predict its outcomes, as I think most of us do:
- With a number of specialist colleagues, I recently took 650 pages to explain the (to my mind simpler) law around claims for children (find more here);
- I have 19,000 words in the leading “Red Book” explaining only the [very] basics of child support law (you can buy the Red Book here);
- And at my latest all day training on cohabitant property claims just last week, we reached the surprising conclusion, that £20,000 paid by a claimant towards a kitchen would not be indictative of the all important agreement whereas £10,000 paid toward the mortgage probably would.
The last would be surprising to those trying to make use of the law to find their own solutions. Our current law is littered with challenging subrules of devastating impact, understood by specialists but probably not by those in the relationships. Don’t we just know that our law is too dense to be fit for its purpose which should be the finding fair solutions to difficult situations in a reasonably efficient way?
And at this point surely we have to ask whether law is there to serve society or the systems that deliver it.
- At FLiP and across most of the solicitors’ profession our job is to guide our clients on the law;
- But privately and as users of the law, our view is very much that law should be serving society, and yet it seems properly stuck in the mud.
We would like to see it shift to a place where it is more closely aligned with commonly-held morality: that relationships that involve dependency require responses and adjustment.
The debate generated its usual litany of outlier cases deployed topple over the arguments “for” or “against” change but surely what should be firing progress is the imperative to protect the potentially vulnerable recognising that:
- Relationships happen;
- And whilst the decision to marry is [almost always] mutual, the decision not to do so is often not;
- Those who do not have the power to secure the safety of marriage will often be the same people who are most susceptible to relationship generated disadvantage; and
- The fact that ingrained in our society is the certainty that common law spouses have rights [currently they don’t] only serves to render this population more at risk;
- Given that more of this population are women who may struggle to access the work place later in life and who very often will be primary carers, they are quite likely to carry children into poverty with them – and the idea that children are discriminated against depending on the marital status of their parents should surely command change – and urgently;
It seems way past time that our law-makers bring forward protection and the possibility of redistributing wealth to reflect the financial vulnerabilities generated by cohabitation.
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