No change in the law on cohabiting couples

At present there is very little financial protection for the weaker party when a couple separate after living together without marrying.  There is some help available under the Children Act if there are children, and in certain situations the ordinary law of property can be used, but such cases are rare.

Take for example two couples, Couple A and Couple B.  In each case they started living together twenty five years ago.  They each had three children, who are now grown up and financially independent.  Couple A got married; Couple B did not.  In each case the house is in the man’s name, the mortgage has been paid off and the house is now worth say £400,000.  The woman gave up her career to look after the children and manage the household.  The man is earning a good income and will be working for another ten years before retiring on a handsome pension.  The woman is unlikely to be able to get a job at her stage of life and if she does it will be poorly paid.  She has no pension provision of her own.

The couple separate.  In the case of Couple A, they get divorced.  The financial arrangements are settled by agreement, the parties having conducted the negotiations with reference to the sort of settlement that their respective solicitors advised them they might have had imposed on them if a judge had had to make the decision for them at the end of a contested court hearing.  The house is sold and the proceeds divided equally so that they can each buy a small property free of mortgage; the man pays the woman maintenance every month until he retires;  there is a pension sharing order which gives the man and the woman equal income in retirement (based on pension provision built up at the time of the divorce).

What of Couple B?  The man keeps the house, his income and his pension.  The woman gets nothing.

The Law Commission produced a report in 2007 recommending that certain financial rights be available when a cohabiting couple separate.  The Government delayed a decision because such a law had recently come into force in Scotland and it thought it would be a good idea to see how the new law worked out in practice.  Last week the government minister responsible for these matters in England and Wales, Jonathan Djanogly, made a short written statement to Parliament announcing that the Government did not intend to implement the Law Commission’s proposals.

Would it devalue the institution of marriage to provide some financial protection for people like the woman in Couple B?  Some people think so, but others, myself included, think that the unfairnesses thrown up by the present system are so awful that something ought to have been done.