Henry’s article was published in eprivateclient, 6 April 2023, and can be found here.
The wrong priorities in family law reform?
Given the government’s apparently limited stamina for legislating on social issues, and the passage of only a year since the introduction of no-fault divorce, the Justice Minister’s plans to direct a Law Commission review of the Matrimonial Causes Act 1973, which provides a framework for financial provision on divorce, is somewhat surprising.
Some high-profile family lawyers support a review, describing the current law as out-of-date, and leaving too much to judges’ discretion.
Others, myself included, consider that the current law works fairly well, and would suggest that if the government is willing to get stuck into family law, it has picked the wrong target: the issue of financial provision for unmarried couples ought to be a greater governmental priority.
It is no doubt true that, fifty years on, the MCA 1973 could likely be improved. However, the law has not stood still since 1973 – judicial interpretation has enabled it to keep pace with changing social norms, within the overriding framework of the Act.
Examples include the 2000 case of White v White, which established that when distributing the fruits of the marital partnership there should be no discrimination between breadwinner and home-maker, and the 2010 case of Radmacher v Granatino, which provided that nuptial agreements should generally be upheld unless this would cause unfairness.
Other, more gradual, evolutions of the law have also taken place, such as the increased expectation that mothers should return to work and be self-supporting.
Some criticise the current law as too reliant on judicial discretion, rendering it uncertain and resulting in litigation and vast legal fees. However, the key principles to be applied are now clear and enable the vast majority of separating couples to reach negotiated solutions. Those who choose to incur huge fees litigating within the areas of judicial discretion are a very small minority.
Judicial interpretation has thus enabled the MCA 1973 to better reflect the way in which life is lived by those who choose to marry or enter a civil partnership. Yet the complete lack of legal entitlement to financial provision for cohabitants on separation means judges have not been able to ensure the law keeps pace with social change in this area. As a result, the present law fails the increasing number of people who choose to live, and have children, without marrying or entering a civil partnership.
In 2021, 22 percent of couples who lived together were cohabiting rather than married or in a civil partnership. Such couples have no financial claims arising from their relationship in the event of separation (save for the benefit of any children).
Whilst some couples may choose to cohabit precisely because of the lack of legal rights it generates, many are likely unaware of the legal position – 2019 research showed that 46 percent of the population falsely believe that cohabiting couples form a “common law marriage”.
Others may be aware of the legal situation, and, in an unbalanced or abusive relationship, refuse to marry precisely to avoid such rights arising.
The situation causes real unfairness – consider the plight of a woman who, after 30 years fulfilling the role of mother and homemaker to a successful businessman, finds she has no right to live or share in the family home or any other assets. Whatever one thinks should be the role of marriage in society, cohabiting relationships are now unquestionably accepted by as a legitimate way to live, and the law should reflect this reality.
There is therefore wide consensus within the family law profession that financial rights for cohabitants are desperately needed, with Resolution, the association of family lawyers, campaigning for change.
Such provision was introduced in Scotland in 2006, under which claims can be made by cohabitants who have suffered an economic disadvantage as a result of the relationship. Yet in England and Wales there appears to be little governmental appetite for change. A 2007 Law Commission proposal that couples who had children, or who had cohabited for a minimum period, be able to claim provision based on their contributions to the relationship has been ignored by successive governments.
When late last year the House of Commons Women and Equalities’ Committee recommended that the Law Commission’s 2007 proposals be looked at again, the government responded that this could only be considered after a review of financial provision on divorce and as part of the wider reform of the law of marriage.
Cohabiting families are a growing feature of society, and the injustice faced – largely by women – is significant. Many family lawyers would urge the government to engage with the 2007 Law Commission report before – or at the very least alongside – directing a new one.