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Has there really been a “revolution” in cohabitation law?

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Has there really been a “revolution” in cohabitation law?.

Readers of the Daily Mail may have been fooled into thinking a recent case changes everything for unmarried couples. That’s not the case, as family lawyer Kate Butler explains.

Daily Mail readers may recently have seen the sensational headline “Man ordered to pay £28,500 to his ex-girlfriend after break-up in landmark court ruling for unmarried couples” – an article describing the outcome in a recent case; Southwell v Blackburn [2014] All ER (D) 219 (Oct).  Set against a background of firm Law Commission recommendations that the law as it relates to cohabiting couples should be reformed so as to give greater certainty and fairness of outcome (proposals firmly rejected by the government in 2011) – have we really now been able to achieve a turning point in our legal precedents?

Many will be aware that the law governing the division of property for parties who have not been married to each other is beset with potential complexities.  A simple analysis of “whose name is on the deeds” may suffice in many cases, but once payments start to be considered, as well as what the parties may have intended (rather than what they actually did)  or worse, what a judge may impute their intentions to have been, anomalous outcomes are inevitable.

The yearning for a more predictable and easy to understand basis for fair settlement of such cases is entirely understandable.  In January 2013 there was a much publicised decision in Curran v Collins [2013] EWCA Civ 382 – a case where a couple split after 30 years of living together in a property owned by Mr Collins, from which they also jointly ran a cattery business.  Finding himself limited by the effects of the current legal position, Lord Justice Coulson concluded   'Sadly, the appellant found herself in the classic position of a woman jilted in her early 50s, having very much made her life with the respondent for over 30 years. The law of property can be harsh on people, usually women, in that situation. Bluntly, the law remains unfair to people in the appellant’s position, but the judge was constrained to apply the law as it is'.

Sometimes promises count, even if you’re not married

So what is so “revolutionary” about the case mention recently by the Daily Mail?  A closer examination of the case itself reveals that the court made an award to Ms Blackburn based on promises they considered Mr Southwell had made to her during their relationship, mainly that she would always have a home at his property and have financial security if they separated, and upon which she relied (by giving up her own accommodation and investing her savings with him).  This concept of promises relating to property becoming potentially enforceable – known as promissory estoppel – is a doctrine of law which has been around since the 1940s.  It will only apply in certain circumstances, and here provided a creative route for the judge to impose what he perceived to be a “fair” settlement.

Legal limbo for unmarried couples

Given the government’s insistence that they had no intention of reforming the law despite the Law Commission’s recommendations, we remain in a legal limbo – with judges straining to apply what can often be seen as paradoxically inequitable legal principles, to achieve fair and equitable solutions.

Common misconceptions often lead parties to believe that there is no need for them to take legal advice or put any arrangements in place when they decide to move in together.  The most popular such myth seems to be that when you have lived together for a certain length of time, often believed to be 2 years or more, you become a “common law spouse” and therefore entitled to an equal share of assets.  There is no such thing as a common law spouse, and as Curran v Collins shows, the length of your relationship may also have very little bearing on the outcome.

The importance of an agreement for unmarried couples

The safest way to go into a cohabiting relationship has to be to get proper legal advice at the start.  A living together agreement can give an opportunity for there to be an express written document setting out exactly what is intended, and your lawyer can highlight issues which may make for awkward discussion in the early days of a relationship, but may save you acrimonious outcomes if things go wrong in the future.

Of course there may be a change of law, but after 20 odd years practicing as a family lawyer I’m not holding my breath.

Kate Butler
Divorce & family lawyer, Northampton

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