Last week's announcement from the Office for National Statistics, that marriage rates are the lowest for 110 years, shows that the trend towards couples cohabiting rather than marrying is continuing. As fewer couples choose to marry, provisions to protect the increasing numbers of cohabitants have never been more necessary.
The Ministry of Justice's announcement last month that it will "take no further action" in response to the Law Commission's report urging law reform to protect cohabiting couples is a wasted opportunity to take long overdue action, and is seriously out of step with public opinion.
There are over two million couples currently cohabiting in the UK. By the year 2031 it is predicted that one in four couples will live together without marrying. The law needs urgently to be reformed so that justice can be done, and the vulnerable protected, when the inevitable happens and some of these cohabiting relationships break down.
The current British Social Attitudes Survey, published on 23 January this year, shows that nine out of ten people think that a cohabiting partner should have a right to financial provision on separation if the relationship has been a long one, includes children and has involved prioritising one partner's career over the other's.
The Law Commission's July 2007 report recommends giving courts more powers to share property, savings and pensions where one partner has made a significant contribution that has left them financially disadvantaged, and where a couple have been together for a certain time, or have had children together.
The Government has said it will wait on the bedding down of the Scottish legislation giving remedies to cohabitants, introduced in 2006, to assess the likely costs of implementing the Law Commission's recommendations. However, given the high degree of public support for reform, and that the Law Commission's Report clearly identified the need for it, this decision seems timid. The Family Justice Council understands the Government's concerns about exposing the Legal Aid Fund to further demands on its finite resources. Given the nature of these cases, though, there will be assets which the Legal Service Commission can use to recover its costs through the statutory charge. If money or property is transferred or preserved during the proceedings, the legal costs of the recipient will be recouped from that money or property. This should do much to make reform in this area manageable within existing resources.
The Family Justice Council is concerned that the Ministry of Justice's refusal to act now will mean that the most vulnerable partner who is very often a woman, and mother of any children of the relationship is left to face injustice and financial hardship. In some situations she is left homeless without any claims at all over the property where she may have lived for many years. If this happens, the tax payer has to fund welfare benefits and public housing to support those who should not be left in this position. It is not at all clear how this fits in with the Government's commitment to equality and protecting the disadvantaged in our society.
On behalf of the Family Justice Council