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Family Law

The leading authority on all aspects of family law

06 OCT 2008

Professor Chris Barton - Domestic Partnership Contracts: Sliced Bread or a Slice of the Bread?

Professor Chris Barton, Retired Family Law Teacher and a Vice-President of the Family Mediators Association.
The Tenth Law Commission Programme, announced in June 2008, includes a commitment to review pre-marital contracts (PMCs). The purpose of this article is to look at recent suggestions for, and attitudes towards, these arrangements, and then to consider how the law might best deal with them and with cohabitation contracts: 'These contracts often have very similar terms as marriage contracts and many, if not all, of the same reasons exist for their use' (Maintenance and Capital Provision on Divorce: Recommendations for Reform of the Law and Procedure made by the Family Law Committee (The Law Society, 1991)).

In the last 35 years or so domestic partnership contracts (DPCs) as perceived by lawyers, the government, journalists, fiction writers, the public, and even some affianced, have undergone a sea change. In the 1970s, Pamela Gray's cohabitation contract precedent (PN Gray, 'A New Lease of Life. Precedent for a Cohabitation Contract' (1973) 123 New Law Journal 591) was promptly and sternly rebuked in that publication's correspondence column (see (1973) 123 New Law Journal 705). Anthony Morris' letter might not have been wholly accurate on duress and undue influence as vitiating factors in contract but his attitude to private treaty in domestic partnerships was certainly reflective of the time:
'The normal English couple enter into matrimony in a state of emotional duress and are mutually under undue influence. It is because of this that matrimony cannot find a basis in the law of contract and there must be a separate body of law which recognises this . . . The present body of matrimonial law does recognise these relationships and exists for the very purpose of regulation and protection.' RG Barker was surely more right then than now: 'The presentation to clients of the type of document suggested . . . would add further fuel to the arguments of those who think that, as a profession, lawyers are out of touch.'

For the full article, see September [2008] Family Law journal.

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