Modern Families Cohabitation: Filling the gap of no legal remedy

1. Modern Families
Cohabitation in modern family life:
Filling the gap of no legal remedy
Speaker Graeme Fraser (Hunters)

2. Cohabitation is the fasting growing type of family in the UK
• 3 million couples now cohabit
• 30% of all births born to cohabiting couples
• 25% of unmarried men and women between 15 and 59 cohabit
• 78% of couples live together before marriage
• Average age at which people marry has crept upwards to 31 (men)
and 29 (women)
• Perception: little difference between being married and living
together

3. Relationship generated disadvantage
• The division of labour between a modern family couple is not always
‘traditional’ in terms of who earns the money, or who runs the home
and cares for the children
But:
does not automatically result in an equality of property ownership
• Childcare and homemaking can mean less income and no appreciable
assets for performing those roles
• Those financial sacrifices can then enable the breadwinners to improve
their income, and invest to accumulate capital
• The effect is aggravated the longer the relationship lasts

4. Burns v Burns: The Facts
Court of Appeal decision: 26th July 1983
"Mrs" Burns began living with Mr Burns as man and wife in the
summer of 1961
"Mrs" Burns changed her name, passport - friends and
acquaintances believed them to be married
Initially lived in a rented flat where boy born on 29th April,
1962
1963, Mrs Burns became pregnant again and moved to a
house bought by Mr Burns in July
Second child born on 9th October 1963

5. Burns v Burns: The Facts
She could not earn any money when the children were small
In 1975, she started earning, but income went towards
housekeeping, so no savings
Paid for fixtures and fittings, wallpapering and some white goods
By 1980, the relationship deteriorated and Mrs Burns left
Mrs Burns asserted a resulting trust due to "changes in custom"
during the 1960s and 1970s

6. Burns v Burns: The decision
Lord Justice May : "when the house is taken in the man's name
alone, if the woman makes no "real" or "substantial"
contribution towards either the purchase, deposit or
mortgage instalments by the means of which the family home
was acquired, then she is not entitled to any share in the
beneficial interest in that home even though over a substantial
number of years she may have worked just as hard as the
man in maintaining the family in the sense of keeping the
house, giving birth to and looking after and helping to bring
up the children of the union"

7. Burns v Burns: The impact
Lord Justice Fox: "she lived with him for eighteen
years as man and wife, and, at the end of it, has no
rights against him. But the unfairness of that is not a
matter which the Courts can control. It is a matter
for Parliament”

8. Case law since Burns:
The rise of the common law constructive trust in a domestic
property situation
But there must be evidence of an express, inferred or imputed
common intention to share
Where the property is held in one party's sole name, the party
who makes non-financial contributions, such as raising the
couple's children will continue to struggle to obtain any share
in the family home on separation
This can lead to hardship and vulnerability

9. Contrast with the Family Court's approach to financial remedies
on divorce…
White v White: 26 October 2000 House of Lords
Lord Nicholls: "In seeking to achieve a fair outcome, there is no
place for discrimination between husband and wife... Typically,
a husband and wife share the activities of earning money,
running their home and caring for their children. Traditionally,
the husband earned the money, and the wife looked after the
home and the children… But whatever the division of labour
chosen by the husband and wife, or forced upon them by
circumstances, fairness requires that this should not prejudice
or advantage either party"

10. Impact – Pendulum swing in favour of wives:
An equal division of the resources accrued during the marriage
including the family home is the starting point
An unequal division in the wife’s favour where an equal division did
not meet her and the children's needs
FLBA response to Miller McFarlane: an economically stronger
party is advised not to marry
Is English law not fit for purpose in dealing with modern family
society?

11. Filling the gap of no legal remedy –Laissez-faire approach
Promotion of marriage: Government's plan to re-introduce tax relief for
married couples for up to £200pa by 2015
But:
Both partners must agree to marry
Some don't want the State to sanction their relationship
No protection for couples who have already lived together for many years

12. Filling the gap of no legal remedy - Contractual approach
Require or encourage cohabiting couples to enter into an agreement
A properly drafted cohabitation agreement should be contractually
binding
But:
Low take up – only 15% of cohabiting couples have any written agreement in
place regarding property ownership
The ability to voluntarily alter the economic structure of the family and
parental roles if circumstances change is often illusory

13. Filling the gap of no legal remedy – Restitution approach
Law Commission proposals 2007
Redress for relationship-generated disadvantage
Qualifying contributions – contribution to shared lives or welfare of
family
Economic disadvantage – diminution in savings due to expenditure or
of lost future earnings
Government response - deferred twice (2008 and 2011) until 2015

14. Filling the gap of no legal remedy – Restitution approach
Cohabitation Bill 2008/2009
Remedies similar to those available on divorce
Tests degree of commitment within the relationship
Claim limited to needs
Periodical payments limited to three years' duration
Bill failed to proceed

15. Criticism of the Restitution approach
Baroness Deech: Imposing a complex legal structure on
people who do not wish to be bound by marriage is simply
wrong
“a windfall for lawyers but for no one else except the gold
digger”
Discretionary remedies can lead to complex lengthy and
expensive litigation
E.g. Crystal ball gazing needed to calculate lost future earnings
Where the law is uncertain, proportionality means it is often
preferable to accept less than pay lawyers for an uncertain
outcome not guaranteed to be fair

16. Fixed rules – a way to remedy injustice for modern family society?
Sweden – neutral approach to marriage and cohabitation
irrespective of whether the couple is opposite sex or same
sex
Objective: "to provide a minimum level of protection for a
financially vulnerable party by sharing the value of a home
that has been jointly built up"

17. Swedish Cohabitation Act
Value of the family home and household goods is divided
equally when the relationship ends, so long as items are
acquired for joint use
Departure possible if a cohabitant has invested gifts and/ or
inheritance or when the relationship is shorter
Reflects that family life means that both parties live in a single
joint home not comparable with any other type of property
The division of labour occurs in all shared living relationships,
regardless of whether you are married or cohabiting

18. Legislative reform of "Mrs" Burns' situation applying fixed rules?
Equality of division of a family home acquired for joint use in family
relationships where a couple living together have children
Outcome for Mrs Burns would be automatic receipt of an equal share
of the family home
End of 30 years of injustice in English law

19. Thank You
Graeme Fraser (Hunters)
Contact: gsf@hunters-solicitors.co.uk
Twitter: @gsf1996
@HuntersFamLaw
www.hunters-solicitors.co.uk
www.londondivorcelawyers.com