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In a recent speech the senior family judge Sir James Munby, informed an audience of colleagues that cohabitation reform was ‘desperately needed’. He lamented the courts’ inability to redistribute the assets of cohabitants on separation.
Sir James, of course, was doing no more than express what has become the orthodoxy among family lawyers. The case for change is straightforward. Cohabitants are in a quasi matrimonial relationship and contribute to it (or are deemed to contribute to it) accordingly. When they separate, it is probable that one of the parties will find themselves in a less advantageous position than the other. It is for the courts to right this wrong, which they can do only via the kind of wide ranging discretionary powers they exercise in matrimonial cases.
These arguments received their most coherent expression in the proposals of the Law Commission published in July 2007. The Commission did not consider that cohabitants should have exactly the same rights as married couples since ‘there is a broad range of cohabiting relationships, exhibiting different degrees of commitment and interdependence. And cohabitants have not made the distinctive legal and public commitment that marriage entails’.
What category of cohabitants, therefore, would have access to quasi matrimonial remedies? The Commission’s criteria were these:
The Commission’s proposals were in substance embodied in the Cohabitation Rights Bill introduced in the House of Lords last October and discussed in the Alexandra Bevir's article, ‘Cohabitation Rights Bill’ in March  Fam Law 352. The purpose of this article is to put the opposing case.
‘The distinctive legal and public commitment that marriage entails’
As the Commission observed, marriage involves a positive act of commitment. If a cohabiting couple do not marry, the presumption is that they do not wish to make this commitment. Or it may be that this is the position of only one of the parties. In that case, the Commission’s proposals amount to saying: ‘You may have made it clear that you would cohabit only on the basis that you would not have quasi matrimonial obligations but we are going to impose these obligations on you anyway.’
At this point we must take note of that legendary figure, the common law wife. We are told that many women imagine that after lengthy years of cohabitation they acquire marital rights by a kind of prescription. Is this really so? I can’t remember the last time a client described herself as a common law wife. In the past the term was a euphemism used when it was not respectable for unmarried couples to live together. In my own experience there are certainly cohabiting women who believe their rights in relation to the common home are greater than they actually are. I have never dealt with a ‘common law wife’ who imagined that her legal position generally was the same as that of a woman with a marriage certificate.
‘The broad range of cohabiting relationships’
The marriage relationship is simple. You sign up and receive the whole legal package. In cohabiting relationships there is no single package. The degree of emotional commitment varies from the intense to the tepid and may fluctuate in the course of the cohabitation. The failure to make the matrimonial commitment might or might not be down to simple lethargy. With middle aged couples in particular, it is usually the outcome of a conscious decision. They may have endured the pain and expense of an acrimonious divorce. Each may have children and independent assets which they do not wish to put at risk. They are grown up people who have made what they believe a rational decision not to enter into the full commitment of marriage.
Under the Commission’s proposals, an applicant for financial relief would have to prove he/she ‘had made qualifying contributions to the parties’ relationship which had given rise to certain enduring consequences …The applicant would have to show that the respondent retained a benefit, or that the applicant had continuing economic disadvantage as a result of contributions made to the relationship.’
This is familiar White v White territory – one presumption being that Mrs Mozart might have written Don Giovanni if she had not been at home ironing the shirts and should accordingly be entitled to an equal division of assets. To establish whether the respondent retained a benefit, or the applicant had a continuing economic disadvantage, or the extent of contributions is the very stuff of litigation. More of that in a minute.
‘The couple had not agreed to disapply the scheme’
This sounds more promising. Consenting adults are to be allowed to make their own arrangements (mistakes included), safe from the depredations of a third party?
Students of Radmacher (Formerly Granatino) v Granatino  UKSC 42,  2 FLR 1900 will not be surprised to learn that the right to opt out is subject to small print viz: ‘The scheme would not apply unless enforcement of that agreement would be manifestly unfair, given the circumstances when the agreement was made or any unforeseen circumstances which had arisen since then.’ Yes, these caveats should provide plenty more scope for litigation. They express a fundamental principle of English matrimonial law: that the courts always know best.
The extent of the present problem
The Commission pointed out that the 2001 Census recorded over 2 million cohabiting couples in
"the principal (monthly) periodical dealing with contemporary issues" Sir Mark Potter P
The main criticism of the matrimonial financial remedies system is its uncertainty. Notoriously, district judges, even in the same court, approach cases differently and many of them will have established a reputation for particular foibles or prejudices. The uncertainty at ground level is equally characteristic of decision making at the top. Consider, for instance, the reminiscences of Mr Justice Paul Coleridge, ‘Lobbing a few pebbles in the pond: the funeral of a dead parrot’ in February  Fam Law 168. Sir Paul was Mrs White’s counsel during part of the famous litigation of that name. It was, he tells us, ‘One of the most extraordinary cases in my career at the bar … We had a great success in the Court of Appeal, overturning the impeccable judgement of Holman J based on the then law and approach in farming cases.’ Mrs White, of course, finally made it to the House of Lords where, as Sir Paul relates, ‘the appeal was duly dismissed; but in the process of its dismissal the whole law of England was turned on its head in what must be one the most far reaching obiter dicta of modern times’. Sir Paul’s tone in describing the White évènement is jocular, though the parties involved failed to see the joke. Other matrimonial litigants will wonder what point there is in paying for hotshot legal advice (at hotshot rates) when an ‘impeccable judgment based on the then law’ can be overturned by an Appeal Court in order to impose its own notions of what social policy ought to be.
It is hardly necessary to speak of the expense of matrimonial litigation. At one extreme, the astonishing costs incurred in the much reported ‘big cases’ are notorious. At the other, the disproportionate costs involved in litigating over very modest assets are regularly bemoaned by the judges themselves. It is not surprising that the number of matrimonial litigants in person is now increasing to the extent that they may soon be in the majority (if they are not already so).
The assumption underlying the call for ‘reform’ is that the claimant will be provided with access to justice and that the court will supply this in equal measure to the respondent. The precedent of matrimonial litigation suggests the contrary.
* Payne has repeatedly been upheld by the Court of Appeal – see for instance, Re W (Relocation: Removal Outside Jurisdiction)  EWCA Civ 345,  2 FLR 409. Judges rarely admit that they got it wrong.
Lest it be thought that I exaggerate and that my view of family judge decision making is unduly jaundiced I quote from the judgment in Re D (Intractable Contact Dispute: Publicity)  EWHC 727 (Fam),  1 FLR 1226:
‘On 11 November 2003 a wholly deserving father left my court in tears having been driven to abandon his battle for contact with his seven year old daughter …Those who are critical of our family justice system may well see this case as exemplifying everything that is wrong with the system … There is much wrong with our system and the time has come for us to recognise that fact and to face up to it honestly. If we do not we risk forfeiting public confidence. The newspapers – and I mean newspapers generally, for this is a theme taken up with increasing emphasis by all sectors of the press – make uncomfortable reading for us. They suggest that confidence is already ebbing away. We delude ourselves if we dismiss the view of journalists as unrepresentative of public opinion …’
These words were spoken by Sir James Munby himself.
The law relating to matrimonial disputes gives judges a very wide discretion. The discretion is regularly exercised unpredictably and frequently with injustice. Wide discretion begets uncertainty and uncertainty begets litigation with its attendant pain and expense. For practical purposes couples, no matter how mature and well advised, cannot be sure of contracting out of this system since the courts reserve the right to strike down agreements they consider unfair. The system has a built in cultural bias which regularly manifests itself. This is not jurisdiction whose embrace should be extended to people who have not signed up to it and of whom a substantial proportion would not, for excellent reasons, wish to sign up to it.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.