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In the News: Should the law reflect changes in society or should it act as a gatekeeper?

In the News: Should the law reflect changes in society or should it act as a gatekeeper?

Posted by justis1 | 16 September 2015

Lord Devlin in the Wolfenden Committee argued that the law should serve a normative function in excluding social changes that are yet to become dominant public norms as perceived by society at large. This therefore combines the two views that the law should adapt to our evolving society as well as incorporating the paternalistic role of the law in being a gatekeeper.

In modern society, the number of cohabiting couple families are surpassing that of married couples, such that, one may go as far as saying that cohabitation has become a dominant social norm accepted by a significant proportion of the public. According to the Office for National Statistics, although, married couple families is the most common family type in the UK, cohabiting couple families is the fastest growing type of family. In 2012, there were 5.9 million people cohabiting in the UK, that is double the figure in 1996, whereas, there were 12.2 million married couples in 2012, a 457,000 reduction over the same period.

One could argue that even in accordance with Lord Devlin’s view, it is about time that the law the reflects this social change since it has served its period of quarantine for at least 16 years, legitimising it as a dominant social norm. Whilst no phenomenon such as a common law marriage exists at UK law, 51% of respondents to the British Social Attitudes Survey in 2008 were of the view that unmarried couples who had lived together for a certain length of time ought to have such a common law marriage, giving them the same legal basis as married couples.

Fortunately, there is a Cohabitation Rights Bill in motion, giving basic protections to cohabitants. In order to assess whether this bill should become an Act one should evaluate whether cohabitants are currently in a vulnerable position, necessitating better protection.

At present, cohabitants do not possess statutory rights of occupation of the family home unlike spouses and civil partners’ “home rights” by virtue of s.30 of the Family Law Act 1996. Due to this, cohabitants lack financial security and are left in a vulnerable position should they decide to separate. Similarly, there is no redistribution of property rights on relationship breakdown for cohabitants which spouses and civil partners have by virtue of s.23-25 of the Matrimonial Causes Act 1973 and sch 5 of the Civil Partnership Act 2004.

For instance, the court cannot require a cohabitant to transfer property to another, they merely have the power to declare who owns what, unlike a spousal situation where the court has powers to adjust property entitlements according to the present and future needs and resources of the parties. This lack of discretionary jurisdiction once again emphasises the potential vulnerability cohabitants face.

The current law governing legal ownership of property amongst cohabitants is the law of trusts dealt with in civil courts, not family courts that are specifically tailored for family disputes. The law of constructive trusts is over complicated and largely dependent on the existence of intention at the start of the relationship. The emphasis on deducing the parties’ common intention is ineffective because often the parties do not even contemplate property divisions since the beginning of any relationship is blissful. In addition, the very nature of cohabitation signals an unregulated freer arrangement.

Furthermore, constructive trusts cannot accommodate ‘contingent’ intentions as they cannot provide that parties hold property in particular shares whilst they are together but will hold different shares on separation. Moreover, on relationship breakdown, the court is unable to substitute its view of what is ‘fair’ instead of imputing the intention of the parties as stated in Jones v Kernott. Even where cohabitants have attempted to provide for contingent situations and have engaged in cohabitation contracts, research has indicated that they are often unclear and that parties have not been legally advised. This analysis thus shows that there is a pressing need for reform in this area of law and possibly an enhanced level of reform than the current Cohabitation Rights Bill.

Conversely, many commentators have argued against any reform at all. Some are of the opinion that personal autonomy would be infringed if cohabitation is regulated by the law in that there must be a reason why a couple would choose to cohabit as opposed to marry, signaling that those couples enjoy the unofficial, looser arrangement. As Ruth Deech argues in her article ‘The Case against the Legal Recognition of Cohabitation’, ‘there ought to be a corner of freedom to such couples to which they can escape and avoid family law’.

Similarly, some cohabitants have genuine ideological objections to the institution of marriage due to its somewhat ecclesiastical roots, adding an unwanted sacramental validation to their union. Perhaps reforming the law on civil partnership to include opposite sex couples would provide a pragmatic solution for this type of cohabitants.

Another argument made by opponents to reform is that by giving legal recognition to cohabitation, the value of marriage as an institution will be undermined since such regulation will act as a similar alternative to marriage all but in name. Although the Law Commission has responded by saying that ‘the objective of promoting marriage does not require us to deny any remedy to individuals experiencing financial hardship at the end of a cohabiting relationship.’ Thus, one could say that a proportionality test needs to be applied here; the balance between human autonomy and the protection of vulnerable persons.

Considering the Law Commission’s statement it seems as though the balance leans towards securing the position of vulnerable persons in society. This is especially pertinent where the decision to cohabit has come from the wealthier party who wishes to protect their assets. Moreover, some commentators argue that there is no dire need for reform because in any family, the child’s welfare is of paramount consideration as stated in s1 of the Children Act 1989 and in regards to children, cohabitant parents have the same rights and responsibilities as married couples save that the unmarried father does not have automatic parental responsibility for the child. However, this can be acquired in a number of ways.

Putting aside the arguments for and against reform, the current Cohabitation Rights Bill needs to be analysed. As part of its criteria A and B are viewed as ‘cohabitants’ if they have ‘lived together for a continuous period of three years or more’ by virtue of s2(d). One could argue that although this bill, if implemented, will go a long way in redressing the current inequality cohabitants face, it is based on a somewhat superficial assessment of what a cohabiting relationship is.

For instance, two people could choose to live together for many years without being fully committed to one another, whereas another couple that have been cohabiting for merely one and a half years could have a more stable relationship. Yet according to this bill, the latter would be denied legal regulation on separation due to a minor shortfall in the period of their cohabitation. Having said that, there would be complex evidentiary issues in proving what is a stable committed relationship between cohabitees for the purposes of seeking protection from the law on an alternative basis. Thus, a quota on the length of cohabitation may be the only pragmatic solution.

Assuming that, the specific number of years required for cohabitants to meet the quota can nonetheless be criticized for lacking harmony with other areas of law in terms of determining the qualifying period of cohabitants’ relationships. For instance, a more suitable length of time would have been a continuous period of two years or more. This would have been consistent with the Inheritance (Provision for Family and Dependants) Act 1975 s1A which defines cohabitants as those who have lived together for at least two years for the purposes of applying for financial provision from the deceased’s estate. Similarly, the Fatal Accidents Act 1976 s1(3) defines a ‘dependent’ for the purposes of bringing a claim as anyone living with the deceased immediately before death for at least two years.

Overall, it is evident that whilst there are credible arguments against reform, the need to protect vulnerable persons outweighs the comparatively marginal infringement on individual autonomy, especially when cohabitants have the choice to ‘opt out’ of the regulation. It seems unlikely that the Cohabitation Rights Bill will become an Act of parliament any time soon since there have been several variants of reform proposals since 2007 yet there has not been substantial progress. In addition, a Cohabitation Rights Bill proposed in 2014 had prorogued and thus no further progress was made. Nonetheless, it will be interesting to measure the level of practical success of the 2015 Bill if it becomes law.

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