"Cohabitation: the Financial Consequences of Relationship Breakdown".

3.24 We invite the views of consultees on whether any legislative definition of those eligible to apply as cohabitants for financial relief on separation should be expressed by analogy to marriage and civil partnership, or in other terms.

We do not agree with the notions that mere cohabitees should ever inherit except where the deceased has expressly stated a desire.

We disagree for the same reason that we object to the notion of an ‘associated person’ and the gifting of any rights to a false legal personality.

The French have a ‘tiered’ approach of concubinage, unions (PaCS), and marriage, and if the Commission is stubborn in wishing to adopt some sort of approach we would suggest that is the least offensive.

For more details see preceding chapters.

3.30 We provisionally propose that any legislative definition of those eligible to apply should expressly require that the parties shared a joint household. Do consultees agree?

No. We do not support any such legislation and therefore object to drafting any eligibility code.

3.31 We provisionally propose that any legislative definition of those eligible to apply should include an express, non-exhaustive checklist of factors to which the court would have regard in determining whether a couple were cohabiting. Do consultees agree?

No. The idea is wrong headed. Check lists become warped over time and abused in use, e.g. Children Act 1989. It is no business of the state, let alone courts, to busy themselves determining whether a couple is or was cohabiting, or not.

3.32 We invite the views of consultees on the factors that they consider should be included in such a statutory checklist.

We refuse to participate in any statutory checklist. The idea displays a lack of understanding.

The property belongs to the owner and should be used, and under the control of, the owner.

It should not be gifted to transient persons who may enter and leave the owner’s life.

Following this course the Commission will be making the same sort of mistakes it did when Deech and Hoggett held sway.

The Commission have forgotten what ‘jurisprudence’ is and its purpose.

There is a reason why ‘hard cases make bad law’.

3.52 We consider that cohabitants who are by law the parents of a child born before, during or following their cohabitation ought to be automatically eligible to apply for remedies under any new scheme on separation. Do consultees agree ?

No. It is already an assumed responsibility freely and willingly entered into by many fathers – we presume that is what you are trying to refer to - so there is no need to impose it by law.

The only person entitled to inherit from such a union must be the child via a will, i.e. via the express wishes of the owner (dead or alive) – not the court making assumptions that may be one thing and one result today but quite different result in, say, 7 years time.

If you want parents of a child to be automatically eligible to apply for remedies, i.e. property, then it must be confined to married couples.

To do otherwise is to risk going back to the era of ‘irregular marriages’.

Couples who cohabit do so for a reason. The Commission’s ’nanny state’ proposals would take away that reason.

The only reason we might be convinced to change our mind and agree to an ‘automatic eligibility to apply for remedies’ would be if fathers were automaticly eligible for sole custody of the children.

This would seem a good exchange in the apportionment of children and house.

3.53 We invite the views of consultees on whether cohabitants with a child, who is not the child by law of both parties ought to be eligible regardless of the length of their relationship and, if so, in what circumstances.

No. To ask this question is to publicly declare that the Commission has lost its moral compass and has not got a clue as to what the upshot will be of enforcing such a regime after, say, 30 or 40 years.

This is small-mind thinking and the Commission ought to have some idea what the result will be and what it expects that the social landscape will look like.

Why does the Commission want to reward low personal standards, poor self judgement, low product quality (resultant child) and reinforce failure when a superior product is available, is efficient, and is fit for purpose ?

The Commission has a 40 year long track record of mistaken meddling; using that experience it ought to be able to predict what will not be achieved once the Law Commission has made its view known - even if it has always been impossible for it to correctly predict what its own actions would bring.

3.54 We invite the views of consultees on:

(1) whether parties who do not have a relevant child should have lived together as cohabitants for a specified minimum duration before they are eligible to apply for financial relief on separation (“a minimum duration requirement”);

(2) how any such minimum duration requirement should be selected; and

(3) how long any such minimum duration requirement should be.

(1) This is the scheme seen in New Zealand. It has yet to be a). proven to work and not penalise only men (the wealth creators) and b). proven to work in a population of over 4 million.

(2) We do not agree with the concept of a minimum duration so how it is devised is superfluous.

(3) The idea of a state enforced duration before qualification could apply more reasonably to other matters far outside the matrimonial arena. There should be no minimum and no maximums because there should be none at all.

3.64 We provisionally reject the view that the substantive law governing financial relief between spouses on divorce (Part II of the Matrimonial Causes Act 1973) should be extended to cohabitants on separation. Do consultees agree?

For the divorced male the Matrimonial Causes Act 1973 is something of a joke. The reasons – and this would be plain as a pike staff if courts were open to the public - is that Courts and judges dip in, take from it only what they want and leave forgetting the whole Acts intentions.

So ‘Yes’, we agree it should be rejected as it works vindictively for spouses.

3.66 We provisionally propose that in granting financial relief to cohabitants on separation, the courts should have available to them the following menu of orders:

(1) periodical payments, secured and unsecured;

(2) lump sum payments, including by instalment;

(3) property adjustment;

(4) property settlement;

(5) orders for sale;

(6) pension sharing; and

(7) interim payments ordered on account pending a full trial or final settlement.

Do consultees agree?

No. If the Commission sees nothing wrong with offering a ‘menu of orders’ for judges and courts why should not ‘a menu’ be offered to the condemned man - it is after all his property you are proposing to take off him ?

It was particularly thoughtless of the Commission to allow marriages entered into during the 1950 and 1960s to be divorce under the terms of the 1970 and 1980 laws.

If the Commission had been honest about what were described in 1968 as ‘bottlenecks due to illicit union’ then a temporary “Special Measures” Stat Inst would have remedied the problem.

3.75 We provisionally reject the view that any new scheme should take effect by reference to fixed rules for property division. Instead, we provisionally propose that the courts should exercise a discretion structured by principles which determine the basis on which relief, if any, is to be granted on separation. Do consultees agree?

No. Even if we agreed with the original premise, of property confiscation, what question 3.75 contains is an ignorance of ‘certainty’.

Any 1st year student of matrimonial law could tell you that a). the use of discretion was a disaster as it permits no predictability and judges can never get it wrong, and b). “There is not law in family law”.

If you cannot guess what havoc such an idea might bring, we would be wasting our breath trying to tell you.

3.137 We invite the views of consultees on the principles which should justify and quantify awards of financial relief between cohabitants on separation.

There should be none at all.

If any measure shadowing the Commission’s 2002 or 2006 proposal are adapted the longer term decline in wealth creation, tax raising revenues and industrial predictability will flow.

We will have a transfixed economy slowly sliding into decline and relative poverty similar to that presently seen in Japan.

3.138 We consider that the mere fact that one party has financial or other material needs should not in itself justify the grant of financial relief from the other party on separation. Do consultees agree?

Yes. The doctrine that ownership cannot be compromised should be adhered to and reinforced. We believe this because it makes understanding for ordinary folk that much quicker and simpler to grasp. It avoids false hopes and disappointment

For an example of how not to design something look at our ‘Benefits’ system where some (who know the system works) can make extraordinary gains while others withers in wintry coldness.

3.139 We consider that, in determining whether to grant relief and, if so, what the relief should be, the court should have regard to whether, and to what extent, either party’s economic position following separation (in terms of capital, income or earning capacity) was:

(1) improved by the retention of some economic benefit arising from contributions made by the other party during the relationship (“economic advantage”); or

(2) impaired by economic sacrifices made as a result of that party’s contributions to the relationship, or as a result of continuing child care responsibilities following separation (“economic disadvantage”).

Do consultees agree?

(1) This sounds like is a silly idea. It might have been more normal to expect a division based on community property but to base it on supposed wealth post-separation seems faintly absurd. Using a stereotype from the 1930s of Lord Bosham’s eldest son and heir to the earldom and Mabel, a chorus girl, how would these proposals benefit the chorus girl ? Would she be seen as a ‘gold digger’ ?

(2) No, this is crystallising victomhood status in yet another social sphere. This person, presumably women, freely entered into the relationship – she was not dragooned. Ignorance is never a legal defence and if the Commission is now trying to make it one by saying many young women are ignorant of the law, then where does the fault lie ? Perhaps in our schools but certainly not against a cohabitee.

The economic advantage argument cuts both ways. The party in the better economic position should be rewarded for assisting the less well-placed party - not simply penalised every time. What is never considered by do-gooders is the value that should be put on the economic advantages and perks enjoyed by his patronage while they were together and offset that against notion of alleged economic sacrifices.

 

3.140 We invite the views of consultees on the factors to which the court should have regard when considering the justification for, and quantum of, any financial relief to be granted in accordance with the principles of economic advantage and economic disadvantage.

No financial relief / ex-gratia payment / compensation / golden handshake / bribe/ pay off, etc, etc should be granted at all.

3.141 We invite the views of consultees on whether a new scheme for financial relief between cohabitants should include a power to make awards in appropriate cases to assist the party with whom any relevant children will principally live following separation with the costs of child-care.

The cost of child-care is bankrupting the country. We predicted in 1998 that at £12 billion per annum it could not be viable for very long and any government that tried to implement it would face severe problems within 4 years. We also pointed out that any wages earned by the parent, i.e. the mother, would be swallowed up in nursery fees. This has now come about.

The 1970s saw government prepared to shoulder the cost of divorce (Booth Cttee, inter-departmental cttee 1978). [*]

By 1990 the CSA had to be introduced as government decided that perhaps it couldn’t afford divorce’s legal aid bill and child care costs or Benefit costs, after all.

The Commission is perhaps forgetting that prior to the Finer Report 1976, many husbands were committed to prison for non-payment of child maintenance Twenty years later (1996) this was still the case except that men were so abused they began committing suicide. The non-payment of child maintenance can be traced back to the Commission of 1912. Like the poor, non--payment will always be with us.

Perhaps instead of persecuting men, women could be educated into knowing what, at best and worst, they might expect. This seems to have been the case in the 18th and 19th centuries (Robb v Robb).

So what hope remains for the Commission’s proposals if maintenance or payments by cohabitees who are less committed to their female partners and children than spouses ? Is this why the proposals appear to attack static wealth rather than income streams ?

[*] After the Booth Cttee's report a fundamental shift in policy took place in 1979 and. It was accepted by a high powered Whitehall "inter-departmental working group" that the State should henceforth shoulder the burden of divorce and finance single parenthood (see also "Divorce Matters" Ormrod LJ, et al).

Robert Whiston October 2006