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Family Law Blog

Comment on divorce & family law 

Time for English cohabitation law to come into the 21st century


Time for English cohabitation law to come into the 21st century.

As the proportion of unmarried couples living together continues to rise isn’t it time for cohabiting couples to be given the same legal rights as marries ones?

The office of National Statistics has reviewed the figures from the 2011 Census against the 2001 Census and confirmed that the number of households made up of unmarried families living together rose from 14% to 17%. In the same period the number of households made up of married families dropped from 70% to 65%.

If we needed evidence that society is continuing to change and not everyone  wants to follow the traditional route of getting married before starting a family, we continue to have this confirmed by official sources and if seems reasonable to presume this trend will continue.

Strange then that successive governments are still so reluctant to improve the rights of couples who live together following separation. There was a first reading of a Cohabitation Rights Bill in October 2013 but there has been little or no appetite to progress this since then.

Common law marriage doesn’t exist

The rights of unmarried couples to make financial claims on each other following separation remain extremely limited, even if they have been together for long periods of 20 years or more. The concept of “common law marriage” remains a myth that many have assumed exists to their cost. Although financial claims similar to those you see upon divorce can be made under the Children Act, where there are dependant children at home, it is a far less well trodden path and surprisingly few people go down this route.

What still shocks me is that in a situation where one party in a relationship ends the relationship and the other (still more likely the woman) has not worked and instead stayed at home and raised the family say over 10 or 20 years, no financial claims can be made against the other party. If the family home happens to be in his name, she could be in her fifties, unemployed and possibly unemployable, homeless and without any pension in place. She can make no financial claims on her ex partner and he can legitimately ask her to leave his house almost immediately. 

Equal rights for cohabiting couples in England, not just Scotland

Scotland has had legislation in place since 2006 when the Family Law (Scotland) Act came into effect. As well as dealing with household contents it allows for financial provision to be made available, when, as a result of decisions made together, one partner has been financially disadvantaged. This is designed to cover the situation where one partner has given up work for several years to raise children, for example.  

It seems a great shame that for a government that claims to be on the side of families, there continues to be no provision in place to protect individuals who take time out to raise their children. Ensuring unmarried partners are protected in no way detracts from the institution of marriage. It is surely time to be more courageous and less politically restrained so we can ensure fairness in modern society.

Kate Brooks
Divorce & family solicitor, Market Harborough


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A well crafted article by Kate Brooks concerning matters of money post separation, but what of matters of child contact? There is nothing in place to protect a ‘child’s right to contact’, and yet increasing obstacles are being laid down to prevent it, often on whim. Cafcass is an obvious example of such.

What is missing is a post separation parenting framework, whereby separating parents understand that they continue to share responsibility of parenting for life; and guidelines setting out the norms of quantum and frequency of time to ensure that the child’s right is both protected, and enforceable in Law.

In its absence, the Children Act has fundamentally failed the interests of children in separating families - and ramifications of this systemic failure are set out in a recent Centre for Social Justice Report declaring that Britain is now World leader in family breakdown.

Here in the UK, we need to rapidly get away from the concept that “using a child to get back at the ex” is considered the social norm, and adopt the mantra of continued shared parenting and shared responsibilities. Without it we remain decades behind other countries already doing this now.

Lawmakers could play a vital role in initiating this important social change, simply by enshrining in Law the concept of continued post separation parenting; including the norms of quantum and frequency of how a child’s time is to be apportioned in the median case; based on what ‘good enough’ parents will agree. (Although ‘shared’ responsibility may not mean equal time).

This should perhaps include a greater emphasis on early professional therapeutic intervention to help parents considering separation to rescue their relationships; or, to properly prepare them for a different life role of sharing parenting responsibilities following separation.

What we can certainly do without is a continuance of the mantra that a ‘child’s best interests are served by needless child-parent severance’ - following years needlessly manufacturing one parent families by Institutions that have, and continue to, fail the ‘best interests of the child’ on a massive scale.


By Kenneth Lane on Saturday July 26, 2014

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