The 'why bother?' attitude to cohabitation laws

Every so often a story will hit the headlines that throws an unforgiving spotlight on the blurrier corners of the law. This month it was the case of Joy Williams. She was the focus of several news stories following the death of her partner, Norman. They had lived together for 18 years but were not married. He had in fact never divorced his wife, Maureen.

What's more, at the time of his unfortunate death from a heart attack, the former dentist had not amended his will to reflect his new life with Joy. The couple shared a home but did so as tenants in common and so one could not inherit from the other. Naturally this made his estranged wife his legal heir and she intended to sell her share of the home.

Unable to buy out Maureen Martin and facing homelessness, Joy went to court. Luckily for her, the judge was persuaded that she had a case. It was 'fair and reasonable' that she received full ownership of the house, he concluded, because she and Norman lived there as husband and wife.

While we cannot know exactly why Norman never divorced his first wife or amended his will, we do know that the myth of the 'common law marriage' with its non-existent rights lingers stubbornly on.

We also know that, in England and Wales, cohabitants still have few legal rights and can be left with nothing to show for decades with their now ex-partner. But whenever I have called for cohabitants' rights in the past, I have faced the same arguments: some couples make the conscious choice not to marry and do not want a 'marriage by the back door'. I would agree that a decision not to marry should be respected, but there are many complexities and nuances and these deserve consideration too. The reality is that not everyone in a cohabiting relationship has chosen to be there - some are with partners who simply refuse to walk up the aisle. And an unfortunate number, like Williams, can find themselves in difficult circumstances after their relationship has come to a sudden end from bereavement or abandonment. Is it fair that those people should be left with nothing?

Ironically, the law in its current form does provide some protection to cohabitants on death, via the Inheritance (Provision for Family and Dependants) Act. If her partner had left her instead of succumbing to heart disease, Williams could well have been left high and dry. Roll on the day when a government is willing to grasp this particular nettle and legislate. That, of course, would mean new laws. And when courts, lawyers, and judges are all seemingly on their way to extinction, as the Lord Chief Justice recently implied, why bother?

Marilyn Stowe is senior partner at Stowe Family Law @StoweFamilyLaw www.stowefamilylaw.co.uk