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The Sunday Times cohabitation debate

Last night I attended a debate organised by the Sunday Times and the Marriage Foundation on marriage and cohabitation, and whether cohabitants should be given greater rights on relationship breakdown.

There is an ongoing debate in the Family law world on this subject as couples increasingly live together and have children without "tying the knot". At present when a cohabiting couple split up the less wealthy partner has no right to make a financial claim against the other, no matter how long the relationship has lasted or whether they have had children together.

The debate, which was held at the new Sunday Times offices at London Bridge, was chaired by broadcaster John Humphrys and included a panel comprising of the founder of the Marriage Foundation and former High Court Judge Sir Paul Coleridge, Dr Samantha Callan from the Centre for Social Justice, Susan Jacklin QC, journalist Kate Spicer and Family law barrister Samantha Singer of QEB.

Whilst Kate Spicer was ideologically opposed to marriage, the stance of Susan Jacklin QC was a more practical one. She felt cohabitants should have rights because of the injustices she has seen in the course of her work, such as a woman dumped after a cohabitation of some 25 years and four children who found she had no rights to a share in the family home.

While Sir Paul agreed that cases like this were indeed unjust he did not feel that the law should be changed.

As the evening progressed it became clear that there was very little appetite amongst the panel or the audience to give rights to cohabitants who did not have a child together, and to me that seems reasonable. As Sir Paul said there is something very illiberal about thrusting rights onto people who have not asked for them.

The debate really centred around whether cohabitants who had children together should be protected if that relationship breaks down. As Samantha Singer noted cohabitants can make a claim on death (under the Inheritance (Provision for Family and Dependents) Act 1975) why not on relationship breakdown? The phrase “relationship generated disadvantage” was used acknowledging that some individuals (often but not necessarily the woman) lose out financially because of child caring or domestic responsibilities.

The Law Commission has proposed that cohabitants who have lived together for two years or who have a child together should be able to make a claim on relationship breakdown. Sir Paul Coleridge and Samantha Callan disagreed and so did some of the audience members who commented. Sir Paul suggested said that people should be given incentives to stay together, such as progressively more generous tax breaks for those who stay married the longest.

This is a difficult subject, whilst I have always broadly agreed with Sir Paul that financial obligations should not arise until people have made a specific decision to enter into a state that confers those rights, it is hard not to be moved by the plight of those who find themselves vulnerable on relationship breakdown. On balance however I am not convinced of the case for cohabitants rights, although I suspect that the law will be reformed to protect vulnerable former cohabitants as it has been recently in Scotland.

It was interesting to note that Samantha Singer, the barrister who had argued most vocally for cohabitants rights and who herself has a young child without being married, has now decided to marry after all.