If you like it then should you put a ring on it? By Kuits Solicitors Head of Family law, Katie McCann.
17th November 14
If you like it then should you put a ring on it?
Times have changed – and on the whole these changes are for the better. We are now living in a country where same sex couples can enter civil partnerships or marriages and couples that cannot conceive have the option of surrogacy. An additional change taking place in the modern world is that people are placing less importance on marriage and many couples are choosing to cohabit instead. Marriage figures continue to drop and, over the past 20 years, the percentage of men and women under 60 cohabiting in the UK has risen from 11% of men and 13% of women to 24% and 25% respectively.
The decrease in the number of marriages taking place has been blamed on the decline of religion, a more tolerant approach to pre-marital sex and a rise in feminism. People are no longer prepared to get married simply because ‘it is the next stage of life’ and rightly so – no one should be going through life with a check list ticking off activities simply to please others.
However, problems are arising due to the fact that people are making uninformed decisions – far too many people incorrectly assume that cohabiting will bring them the same rights that marriage would in the unfortunate event that their relationship comes to an end. The reality is that the law has not yet adapted to mirror the change in demography and as a general rule cohabitants should not assume that they will be financially protected if their relationship breaks down.
Family Judge Sir Nicholas Mostyn QC recently commented on the fact that security is not available to unmarried couples. He condemned the fact that special protection is given to husbands and wives by stating, ”It is not the role of the state, in my humble opinion, to go round telling people how to form their relationships.” He added, “I do not support two classes of adjudication depending on whether there happens to be a marriage. I support the existing system of judicial equitable distribution to the unmarried, warts and all.”
The logic of those who share Sir Nicholas Mostyn’s views is often based on the idea that there is little difference between cohabitation and marriage. In addition to this, they believe that if people are choosing to cohabit then the law should adapt to accommodate them – and in some ways there appears to have been a shift in this direction.
The recent case of Southwell v Blackburn is an example of this and has therefore been described as being a landmark decision for unmarried couples, in that the Court of Appeal upheld the order of a lump-sum payment by a businessman to his ex-partner who, after two years of dating him, moved out of her rented accommodation and into a house they chose together but was financed entirely by him. The Judge based his ruling that the woman should receive £28,500 on the fact that the decision to purchase the house was made jointly in order for it to become their home – a place where they would live together as man and wife. The man had assured his partner that she would always be secure and, as a result of this, the Judge explained that it would be unconscionable to do anything other than attempt to place her in the position she had been in before she had given up her house.
The court’s decision in Southwell is sure to delight supporters of cohabitation – after all, if nothing more, it is an acknowledgment by the court that cohabitation could carry benefits upon separation without financial input. However, on the opposite end of the spectrum, marriage campaigners will argue that if the court provides equal rights to unmarried and married couples then this has the potential of destroying the principle of marriage. Sir Nicholas Mostyn may have a point in claiming that the state has no right to tell people how to form relationships; however, what it is entitled to do is to state that if people choose not to marry then they cannot expect to enjoy the rights that are attached to marriage. To do this would be to buy a Bentley but expect a Jaguar service plan – neither car is necessarily better but they come with different care packages.
Commenting on Sir Nicholas Mostyn’s statement, Katie McCann, Head of Family at Kuits questions why we should erode the current position to allow uniform rights across all forms of relationships, stating: “The current differences between marriage and cohabitation upon separation gives people a choice. Perhaps it could be said it is not the role of the state to erode that choice.”
McCann explains, “The point is, couples should retain the choice over how to regulate their financial relationship. To regularise both sides of the coin is to remove that choice, and may ultimately prevent many relationships getting off the ground for fear of financial repercussions on separation that neither party consciously signed up for.”
Entering into a marriage is effectively entering into a financial contract, with consequences attached to it if the marriage fails. Those who feel marriage is not for them often choose to cohabit instead. Whilst the case of Southwell may be something of a ‘sneak preview’ in relation to the future law on cohabitation, as it stands those who cohabit instead of marrying must assume that they do not have any automatic rights attached to their relationship set-up. In order to protect themselves properly they must enter into cohabitation agreements, which will determine what will happen to their property on separation. Whilst this may not sound as romantic as a honeymoon on the Amalfi Coast, it will serve to protect the party’s interests if their relationship does not go the full distance.
Written by Katie McCann, Head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.
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