Lady Hale says Scottish cohabitation ruling has “lessons to be learned” for England and Wales

News Release

05 Jul 2012

A unanimous ruling yesterday by the UK Supreme Court in a Scottish cohabitation case has clear lessons for the way the law should be reformed in England and Wales, Lady Hale (one of the judges ruling on the case) has said.

In supporting the judgment in Gow v Grant, Lady Hale commented on the disparity between the Scottish legislation introduced five years ago, and the legal position in England and Wales. She emphasised the research which stated, “The Act has undoubtedly achieved a lot for Scottish cohabitants and their children,” adding: “English and Welsh cohabitants and children deserve no less.”

The court went on to say that the “main lesson” from the case was that a remedy such as that provided in Scotland “is both practicable and fair.”

However, individuals who make a claim when they stop living together should not expect to receive as much as a spouse would on the breakdown of their marriage but they should expect the gains and losses flowing from their relationship to be redressed.

Resolution, which represents 6,500 family law professionals in England and Wales, said that, although one in six couples currently live together without being married, huge numbers of them face distress should they separate. This is because of out-of-date laws surrounding cohabitation, combined with popular misconceptions that still exist.

Steve Kirwan, Chair of Resolution’s Cohabitation Committee said:

“The current situation for people who live together in England and Wales, more often than not creates injustice and hardship, and our current law fails to reflect the way people are choosing to live their lives. Sadly, children, who were not party to their parents’ decision not to marry, can often be affected.

“Despite the “common law” marriage myth, it is possible to live together with someone for decades and even to have children together, and then simply walk away without taking any responsibility for a former partner’s welfare. That is simply wrong.”

Resolution is calling for new laws in England and Wales, for couples who have lived together for five years or more – or for less time in cases of exceptional hardship. For cohabiting couples with children, the law would offer protection regardless of how long they have lived together.

These couples would have an automatic right to apply for certain financial orders if they separate. If a couple wished to opt out of this provision, they could do so by way of a written agreement. Such a law would prevent injustice by allowing the courts to recognise a cohabiting relationship and decide on an outcome that is fair and reasonable.

Mr Kirwan added:

“Now that the Scottish legislation has been in place for several years, and the lessons from research are available, we urge the government to revisit this matter, so that cohabitants in England and Wales can receive similar legal protection to their counterparts north of the border.”