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Sir Nicholas Wall calls for cohabitation reform

7 February 2011

Sir Nicholas Wall, president of the Family Division, has called for the introduction of new laws to protect the rights of cohabitees who split up and have no legal agreement to rely on.

In comments made to The Times, Sir Nicholas said he was concerned that female cohabitees in particular were “severely disadvantaged” by having their property rights determined by the conventional law of trusts.

As a solution, he proposed that the courts should have similar powers to award maintenance payments, a lump sum or a share of the property, as they had when dealing with married couples.

The Law Commission recommended in 2007 that cohabitees should be able to bring financial claims where they could show they suffered a financial disadvantage from the relationship.

The commission suggested the new rights should apply only to unmarried couples with children, or where the relationship had lasted for at least two years.

However, former justice minister Bridget Prentice said the government was concerned by the financial implications of cohabitation law reform, and would await research from Scotland into the impact of the Family Law (Scotland) Act 2006, which introduced commission-style reforms north of the border (see solicitorsjournal.com, 11 March 2008).

A spokesman for the MoJ said last week that ministers were studying research from Scotland and would make an announcement in “due course”.

In his former role as a lord justice of appeal, Sir Nicholas gave the leading judgment in Kernott v Jones [2010] EWCA Civ 578.

The judgment was heavily criticised for cutting the woman’s share in a property from 90 per cent to 50 per cent. There were two children and the man had moved out and bought another house.

Delivering the leading judgment, Lord Justice Wall warned: “The purchase of residential accommodation is perhaps the single most important financial transaction which any individual transacts in a lifetime.

“It is therefore of the utmost importance, as it seems to me, that those who engage in these transactions, and those who advise them, should take the greatest care over such transactions, and must – particularly if they are unmarried or if their clients are unmarried – address their minds to the size and fate of the respective beneficial interests on acquisition, separation and thereafter.

“It is simply impossible for a court to analyse personal transactions over years between cohabitants, and the costs of so doing are likely to be disproportionate in any event.”

The Supreme Court is due to hear Ms Jones’ appeal against the ruling in May.

Nigel Shepherd, law reform spokesman for Resolution, said Sir Nicholas’ comments were unlikely to make a significant difference to the government’s current approach.

“Reform of the law on cohabitation is quite clearly not a priority for them,” he said.

However, he said Sir Nicholas’ comments would be “extremely helpful” in highlighting the injustices of the current system.

Shepherd said Resolution backed similar reforms to those proposed by the Law Commission, with a less complex approach to financial disadvantage.

He said research from Scotland showed that not as many cohabitees as expected had taken advantage of their opportunities under the new law and the introduction of similar measures south of the border would not create an “additional significant demand” for courts and legal aid resources.

“The impact was broadly neutral,” Shepherd said. “It was not a case of the floodgates being opened.”

He added that he did not expect David Norgrove’s interim report on the family justice system to be published before the end of March.

Categorised in:

Regulators Marriage & Civil partnership