The Ministry of Justice has announced that the Divorce, Dissolution and Separation Act 2020 (DDSA 2020), which received Royal Assent on 25 June 2020, will now have a commencement date of 6 April 2022....
Book review – Cohabitation: Law, Practice and Precedents by District Judge Wood et al
Sep 29, 2018, 22:53 PM
family law, reform, cohabitation, divorce, pre-nuptial agreement, Lord Marks' bill, case law, international, separation, guidance
Cohabitation: Law, Practice and Precedents is the only work on the subject to provide commentary, checklists, procedural guides and precedents in a single volume making it an invaluable aid to all practitioners advising unmarried couples.
It is difficult for a busy family law practitioner to access cohabitation law quickly as there is no specific family law based remedy. This monster of a tome attempts to put all those resources together in one place. Does it work?
The introduction is succinct but precedes the House of Lords' debate of Lord Marks' bill. Reference to comparative law would have been instructive to demonstrate how far out of kilter English law is now positioned when compared to many other countries. A later section on pre-nuptial agreements does include comparative law, but a broader international approach would have been helpful given the increasingly international nature of families in England and Wales.
The section on Property demonstrates a considerable depth of explanation as to the development of the concept of the common law constructive trust. There is a particularly useful table contrasting joint and sole name cases, indicative of the many useful summaries provided in other sections of this book.
The declaration of trust and cohabitation agreement precedents laudably deal with the hugely varied scenarios that have been suggested by case law precedent. It is not going too far to say that the book probably deals with every situation that one could think of.
After a brief overview of tax, there follows a useful discussion of personal protection remedies, including easy reference procedural guides in an area of law that can be surprisingly tricky to get right in practice.
There is then a helpful sortie into the huge world of children law, most notably a quick glance reference to Schedule 1 Children Act remedies, with the relevant case law outlined, and accompanying precedents.
Is the book too big? Possibly! I did not expect to read details of inheritance claims by children of the deceased in a cohabitation book. Why is there a significant chapter on pre-nuptial agreements when their fairness can only realistically be challenged after the event of marriage on separation or divorce? Despite this deviation, I found this to be very interesting and perhaps one of the best written commentaries I have read on this area of law. I note that the chapter on pre-nuptial agreements in earlier editions of the book have similarly been well received.
The foray into welfare benefits identifies the huge amount of case law where the existence of cohabitation is challenged because of its impact upon entitlement of benefits. Sole persons often receive more, so it does matter to the State to check the true position. Perhaps, this is useful food for thought for statutory draftsmen if and when cohabitation reform finally passes into legislation in England and Wales.
The book ends with some useful miscellaneous precedents and a helpful reproduction of the relevant section of the Law Society Protocol.
In conclusion, this ambitious project to put cohabitation all in one place pays off. It is a fervent hope of mine, however, that one day we will see the simplification of cohabitation law, and the provision of specific family law remedies providing at least fair basic financial provision, particularly in respect of property law, and for the many children who often suffer the unfortunately adverse outcome of relationship breakdown where their parents have lived together but chosen not to marry. Follow Graeme Fraser on Twitter @gsf1996.