Family lawyer tells BBC R4: Cohabitation law “completely unfit for purpose”

Discussing cohabitation law reform on BBC Radio 4, a leading family lawyer has described the current laws surrounding cohabitation as “completely unfit for purpose”.

Graeme Fraser, Partner in the family law team at BBS Law, appeared on Joshua Rozenberg’s Law in Action programme in light of the government’s recent rejection of much of the Women and Equalities Committee’s report on cohabitation.

Fraser told Rozenberg of one client he had who was “shocked” to discover how little protection she had having cohabited with a man who’d bought the property. While she didn’t contribute to the mortgage, she gave up work to look after the children.

After the children went to university, the father decided to sell up – and the mother was “left impoverished having made a really significant contribution”. Fraser added that, if they had been married, her rights would have been “incredibly different”, and she would automatically have had half of all the assets.

Amidst falling marriage rates, such situations are on the rise, and current TOLATA provisions provide “limited relief” according to Fraser:

“[The current framework] provides limited relief, and even in situations where you can get relief, you cannot get orders such as outright transfers of property, and I have to say in practise it’s very seldom used.”

Rozenberg queried the cost of using such provisions in law. While Fraser did concede that the financial setback is similar to that seen upon divorce, he said the outcomes are often far from it:

“You are often arguing about what happens to property, and then you argue about financial provision for children, and there are two different sets of legislation about that.

Many of these cases don’t get off the ground because people simply can’t afford to use the courts to go through those claims, and even if you do run those claims, the answer can be clouded by uncertainty. You’re looking at what the intentions were of the couple maybe 20 years previously – not taking into account any contributions that have been made in terms of looking after the children or any decision about who was going to take on the main roles.

Effectively, what we’ve got are remedies that don’t work, and therefore the law’s completely unfit for purpose.”

Rozenberg then asked whether Fraser would make cohabitation comparable to marriage – perhaps so that somebody who cohabited for a minimum period would have the same benefits as a couple who were married.

“I’ve never advocated that, Resolution’s never advocated that, and the Law Commission’s never advocated that,” said Fraser in a firm rejection of such a proposal, continuing:

“What we’re looking to do is to establish a framework of rights and responsibilities that puts in place basic protections for people and recognises the contributions or sacrifices that people have made in those relationships.”

Fraser added one of Resolution’s key focuses is on non-court dispute resolution – something dependent on good laws:

“If we have laws that are fundamentally better, then those non-court dispute resolution and mechanisms are going to work better. We’ll be able to reach those outcomes much more easily.”

Another hurdle for cohabitation law reform is the idea – propagated by organisations such as the Marriage Foundation – that it would undermine the principles, commitment, and values of marriage. On this, Fraser said:

“Introducing cohabitation law reforms will not undermine marriage. People’s decision as to what relationship they will go into is their decision, and therefore we have to have laws that help those people. However, there’s never been any indication on our part or Resolution’s part that there would be the same remedies on relationship breakdown or death for cohabitants as marriage. We’re not equating one with the other.”

Listen to the full episode here: https://www.bbc.co.uk/sounds/play/m001f4vf