A Case for Cohabitation

The House of Lords, which in addition to being the upper house of the legislature is also the final court of appeal, has struck yet one more nail in the coffin of marriage in this country. In Stack v. Dowden, the law lords, whose decisions carry even more precedent in this country than the SCOTUS does in the US, have essentially given divorce rights to unmarried couples in the area of real property.

This affects a lot of people. As Baroness Hale of Richmond in her speech (opinion) wrote,

People embarking on their first serious relationship more commonly cohabit than marry. Many of these relationships may be quite short-lived and childless. But most people these days cohabit before marriage – in 2003, 78.7% of spouses gave identical addresses before marriage, and the figures are even higher for second marriages. So many couples are cohabiting with a view to marriage at some later date – as long ago as 1998 the British Household Panel Survey found that 75% of current cohabitants expected to marry, although only a third had firm plans.

One-sixth of couples in this country are cohabiting and 40 percent of children are born out of wedlock. The reason there aren’t more cohabiting couples is that after they have started having children, they often decide to get married, as they assume that because they have they will be staying together. As a matter of statistics, couple who have previously cohabited are much more likely to get divorced that couples who have not, but no one tells them this at the registry office.

Now it will be less messy to split up, so fewer may even bother to get married. Before this ruling, unmarried couples had to spend a great deal of time and money in court arguing for their share of property owned jointly.  The ruling in Stack, published yesterday, says there is a presumption of fifty-fifty ownership.

Because Parliament has chosen not to act to address and accomodate all the changes in social mores, Lady Hale also opined, “. . .the evolution of the law of property to take account of changing social and economic circumstances will have to come from the courts rather than Parliament.” Sounds like a bit of an activist judiciary to me.


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