Three Cheers for Sir Nicholas Wall


Sir Nicholas Wall, President of the Family division of the High Court, told The Times yesterday that the law about couples who cohabit should be changed so that unmarried couples have new rights about their shared property. This is currently dealt with using the law of trusts, which can often be deeply unfair on the woman. Financial contributions at the beginning can be determinative of the woman’s share later on – contributions such as childcare and domestic work are highly unlikely to gain the woman a greater share in the property. A married woman, on the other hand, will have statutory rights to a share of the money and property.

The courts have no power to order financial relief like they do in the case of a divorce, so these claims are crucial. However, they are complicated, uncertain, time consuming and expensive. All of this can be avoided by a simple “express declaration of trust” at the beginning of the cohabitation. But how many people even know what that is? The majority of people don’t even have a will.

This is not the first time the call has gone out to legislate in this area. The Law Commission considered it in 2006/7, but the government refused to legislate for fear of being seen to undermine marriage. There are three quick objections to this. First, the fact that in 1907 there were 644 divorces and in 2007 there were 128,232 means that marriage is already undermined. Second, government needs to be less concerned with what it is seen to be doing, and more interested in what it is doing.

The final objection is that the rights proposed for cohabiting couples are not the same as those granted to married couples or civil partners: they simply make it easier to reach a fair settlement. The Law Commission talked of two important conditions for bringing a successful claim. The relationship must be of a certain length and/or have produced children. It must also be demonstrable that the effect of contributions and sacrifices would otherwise be unfairly shared.

These two simple principles would be a much more just solution, and more practical. Two million people cohabit without marrying, and the 2001 census showed that 1,278,455 children were dependent on a cohabiting couple. 80% of the 18 – 25 group think it is acceptable to cohabit, compared with 30% of the over 65s. It’s here to stay and we need effective laws to govern it.

Whatever we think of the institute of marriage we shouldn’t allow those people, and their children, to be governed by outdated trust laws that confer significantly fewer rights than the law governing marriage. It is suggested in The Times that more than half of cohabiting couples believe they have a common law marriage: this is a myth, there is no such thing. What a better use of her time it would have been for Harriet Harman to pass legislation on this rather than her Equality Act, which adds such things to the statute book as:

A reference to an age group is a reference to a group of persons defined by reference to age;
A reference to a disabled person is a reference to a person who has a disability;
A reference to a person’s racial group is a reference to a racial group into which the person falls.

And my personal favourite:

Religion means any religion.

This could be the opportunity Nick Clegg needs to make a real difference to society. And married women across the land are unlikely to go to Westminster and set a police van on fire in protest. The leg work has been done by the Law Commission – all that’s left is the Clegg work.