The recent separations of two high-profile, wealthy and unmarried couples '“ Johnny Depp and partner Vanessa Paradis and, closer to home, Damien Hirst, and the mother of his three children, Maia Norman serve as a salient reminder of the problems faced by unmarried families.
According to the Office of National Statistics since 2001 the number of cohabiting couples has increased from 2.1 million to 2.9 million. Similarly, it is estimated that over 40 per cent of births are outside of marriage.
Many people wrongly assume their rights are covered by common law marriage as a result of cohabitation. In fact, common law marriage hasn't existed in England and Wales since 1753. Notwithstanding this, research in 2008 showed that 51 per cent of people still believed that there was a status of common law marriage which afforded cohabitants rights equal to those bonded by marriage. The law for cohabitants on relationship breakdown has been criticised by the legal sector as lacking a coherent legal framework, as being outdated, and as providing few guarantees for the parties.
Existing legal provisions
The orders available under the Matrimonial Causes Act 1973 do not apply to cohabitants, who have normatively relied on strict contractual law and property law principles on relationship breakdown, with property divided using the Trust of Land and Appointment of Trustees Act 1996.
Cohabitants have no right to claim maintenance for themselves; father's are not automatically conferred parental responsibility; they are not automatically next of kin for one another and do not automatically inherit the other's property when one dies intestate. However, steps can be taken by cohabitants during their relationship in order to minimise vulnerability. For example putting a rented or owned home into joint names as beneficial tenants in common; should form a cohabitation contract '“ per Sutton v Mishcon [2003] '“ and should enter into a declaration of trust under the Law of Property Act 1925. These steps can mitigate the harshness of the law, however since most cohabitants would not seek legal advice until the relationship is coming to an end they will often not benefit. Married couples by contrast are not strictly required to plan in advance '“ although I would suggest that good sense dictates that they should.
There are some legal similarities between cohabitants and married couples who separate. Children are generally to be treated equally under the Family Law Reform Act 1987 and maintenance for children is equally available under the child support legislation.
J v C [1999] (property division) and W v J [2003] demonstrate that legal similarities exist in family law but these have traditionally been strictly for the benefit of children rather than for former partners themselves. For this reason, married couples who separate will generally rely on marital law rather than children law for provisions such as maintenance.
Because cohabitants cannot claim maintenance from one another and child maintenance is largely prescribed, the most common disputes arise around ownership, occupation and division of equity in the home ?they shared.
There were high hopes that the Supreme Court would solve the problems when considering the case of Jones v Kernott but that does not appear to be the case. The parties bought a home in joint names in 1985 for £30,000. The deposit of £6,000 was paid, utilising funds from Ms Jones, and the balance raised by way of a joint mortgage. They had two children together before separating in 1993 when Mr Kernott left the home. The property was placed on the market in 1995 but was not sold. Mr Kernott made no contributions towards the property after he vacated.
This case gave the Supreme Court the chance to reconsider the decision in Stack v Dowden, in which the home purchased was conveyed into joint names, with Ms Dowden contributing significantly more. A key element in that case was the way in which the parties had maintained separate bank accounts and investments. In that case the House of Lords (as it was then) awarded Ms Dowden a 65 per cent interest.
In my view the Supreme Court in Jones v Kernott was posed something of a dilemma. By allowing the appeal (and reinstating the original order that the beneficial ownership was held 90 per cent in Ms Kernott's favour) they in effect accepted a challenge that successive governments (and the legislature) have shown no ambition to undertake '“ they have been prepared to tackle a real injustice in the way in which cohabitees rights are dealt with by taking into account what they perceive as the changing social conditions.
Reform
The Law Commission reported on the disparity between the breakdown of cohabiting relationships and the breakdown of marriages in 2007 and proposed legislative reform. In 2008, Lord Lester presented a bill to Parliament which organisations such as Resolution supported yet this was halted in 2009 despite considerable support among the profession.
A Parliamentary briefing in recent months shows that the current government has formally rejected the Law Commissions proposals, and the Law Commission's best hope for legislative reform is not till the next Parliament forms.
In the meantime, the judiciary are tackling the issue by developing the common law. The Supreme Court has in the case of Jones v Kernott '“ examined in detail the 'continued failure of parliament' to bring cohabitees rights into line with the rights of married couples and has radically altered the law by giving the courts better redistributive powers on the breakdown of a cohabiting relationship.
The judicial reforms appear better aligned with social trends as the number of cohabitants has increased. It is the social norm to consider that cohabitants should have the same financial provisions as married couples upon separation and unfortunately the 'common law marriage' myth remains prevalent.
The question is whether the Supreme Court is right to take up the cudgels in this area of law in the way that they have? It seems to me that this judge-made law goes further than any statute would have intended. I am in no way seeking to suggest that the law does not need to advance to take account of current social mores but it is my view that this is the wrong way to bring about such change. Yes change is essential, but after proper consultation and Law Commission recommendations.
Fairness must be at the heart of our legal system and by this decision the Supreme Court would purport to have enshrined that principle '“ but it is in my view incongruous with the real mood of the country and goes much further than I believe is justified.
In Midland Bank plc v Cooke Waite LJ stated that: 'Equity has traditionally been a system which matches established principle to the demands of social change...When people, especially young people, agree to share their lives in joint homes they do so on the basis of mutual trust and in the expectation that their relationship will endure'.The fact that these principles are espoused once again in this recent case indicates to me that these are the principles upon which the court is still making its decisions.
I believe that it is no longer the case that couples start to cohabit (or for that matter, marry) expecting it to be for keeps. The statistics do not back that up and neither does the way in which our clients are instructing us. If that were the case there would be no need for the huge increase in the numbers of living together agreements, deeds of trust and pre or post-nuptial agreements that we are being asked to advise upon and draft.
In recent years there has been an exponential shift in the awareness that some clients have of their legal rights. This awareness needs to be extended so that adults make informed decisions about the manner in which they choose to conduct their lives in an atmosphere of knowledge upon which they can be bound.
In my view fairness would be better served with properly considered legislation which moves away from the concepts of inferred intention, constructed intention and imputed intention. Such concepts breed confusion, uncertainty and disorder '“ exactly what we should be striving to avoid.
Some may even argue if we look at cases such as this Kernott v Jones, Stack v Dowden and Radmacher, that the successful party has been female. Is there fairness for all or do we operate a system that is slanted towards fairness for the female applicant?
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