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Family Law Blog

Comment on divorce & family law 

Time for a law change on cohabitation

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As we mentioned in a blog a couple of weeks ago (When is a jointly owned property not a jointly owned property?), a landmark ruling on the rights of cohabiting couples has sent a fair shockwave though the family law world. In a nutshell, a High Court ruled that Patricia Jones was entitled to 90 per cent of the £245,000 property she bought with former partner Leonard Kernott in 1985, overturning a Court of Appeal decision saying he should get half. The unmarried couple had bought the house in joint names, with Ms Jones paying the £6,000 deposit. Mr Kernott later improved the property by paying for a £10,000 extension. They separated in 1993 and Ms Jones stayed living in the property with their children and paid the mortgage and outgoings alone. Mr Kernott did not try to release his share of the property until 2007, some 14 years after the separation.

This ruling brought to an end a long-running argument over who is entitled to what relating to the property. It seems to set a precedent for future cases but that doesn’t change the fact that outdated laws are not always equipped to make rulings on modern society. Square peg in a round hole, and all that.

One option would be to enact the recommendations of the Law Commission's 2007 report on cohabitation, giving unmarried couples rights similar (but watered down) to those of married couples, including claims on and responsibilities for joint assets, such as property. Some have said this is a snub to the sanctity of marriage but isn’t it rather just a pragmatic acceptance of the times we live in? Figures quoted in some of the Kernott v Jones reports suggested there were 2.2 million cohabiting couples in the UK. Some will marry, many will break up but some will simply stay together happily living side by side and without feeling the need to walk down the aisle. Isn’t it time the law stopped ignoring this significant group of adults?

I am still a great supporter of marriage and, practically speaking, if a couple are planning to stay together, buy a house and have children, being married is the simplest way for them to cement that relationship in law. It’s not for everyone though. Living together agreements can be drawn up for unmarried couples. This provides the framework for couples to record their intentions and their respective contributions. This in turn will hopefully set aside any fears they may have prior to living together and they can feel safe in the knowledge that if the relationship was to break down, then the agreement should safeguard them financially.

However, when all the options are weighed up, I feel it is high time the Government introduced a third option that at least gave some protection to couples who have been living together for a certain amount of time and so help avoid clearly confusing outcomes and lengthy court battles, such as we have seen in the Kernott v Jones case, which do our industry no good.

Andrew Woolley
Family solicitor

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