Law, Love and Marriage

The most senior family judge in England and Wales this week called for unmarried co-habiting couples to be given the same rights on separation as divorcing spouses. Sir Nicholas Wall, President of the Family Division of the High Court, argued that those who have lived together in a relationship should have entrenched legal rights governing the distribution of property when they break up. His intervention is the latest contribution in a debate that has vexed family and property lawyers for some time now.

When married couples get divorced, both parties are entitled to a share of the marital assets. Usually, this will involve taking a percentage of the value of the family home. Each party's share is based on a number of complex factors but the general rule is that both are entitled to equal division.

The historical position in relation to unmarried co-habitees is that there has been no rights for either party to make claims on the other following separation. This has changed in recent years following the ruling of the House of Lords in Stack v Dowden (2007). In this case, the House of Lords held that when co-habiting partners are the joint legal owners of the family home, but have not made any express declaration in relation to their beneficial interests, there is a presumption that both parties own the house in equal shares.

Therefore, if you register property in joint names, the starting point is you both have 50% ownership. This is the case even if one person has bought the house outright. That party would need to show that he or she had made an exceptionally high contribution in order to justify departing from the equal division principle.

As a result of this, I was surprised to see Sir Nicholas making the case for more rights for co-habiting couples. In his view, the current state of the law, despite the ruling in Stack, does not do enough to help the weaker party (usually the woman) when a relationship comes to an end. In support of this view two points can be made. Firstly, the ruling only applies to situations where the home is registered in the parties' joint names. As such, if the other co-habiting partner is not a joint owner, there is a presumption that they are entitled to 0% of the beneficial interest. Secondly, in order to enforce rights under Stack, the co-habitee would have to resort to the complex law of trusts, rather than the more sensitive provisions of family law.

As someone who profoundly disagrees with the decision in Stack, I simply cannot see the justification for imposing yet more obligations on couples who have expressly declined to enter into marriage with all the legal responsibilities that entails. In my view, where two people choose to live together in a house purchased in joint names, it should not be automatically presumed that they intend to be joint beneficial owners. It is true that if property is purchased in joint names, it is often the intention of the parties to consider themselves to have the property on equal terms. However, this surely only applies during the relationship itself. Once that relationship has come to an end, the very fact of joint registration should not give rise to a presumption of 50% ownership.

It is open to the parties at any time during the relationship to expressly declare themselves to be joint beneficial owners. If they do this, that will be conclusive. The fact that the parties have chosen not to do this should be regarded as compelling evidence that they intend to share the property in some other way. In the absence of such a declaration and marriage, the state has no right to impose these obligations on two adults.

Critics of this view would perhaps claim that such an approach pays insufficient attention to the needs of children of co-habiting partners. However, courts must consider the needs of the children under Schedule 1 to the Children Act 1989, which allows judges to make a number of orders in relation to property where there are young children involved. Indeed, Baroness Deech, Chairman of the Bar Standards Board and senior family lawyer, made this point when responding to Sir Nicholas' comments during the week.

Whatever way one views the debate, it cannot be disputed that if Sir Nicholas' suggestions were implemented, the distinction between marriage and co-habitation would be sharply eroded. If two people wish to enter into a marriage and put their relationship on a firm, legal footing they should be free to do so. If, however, they don't want the legal and social implications that come with marriage, they should be free to live without it. The different regimes involved in the classification of property rights guarantees a significant degree of individual freedom for people to dictate the terms of their family life. It would be wrong of the state to take away this liberty.