English Law: Unmarried Couples’ Rights

Having just returned from a fabulous family wedding in the green fields of Cheshire, England I was struck by the sheer number of unmarried “partners” at the wedding. Several of the unmarried couples had delightful children and long-standing, committed relationships. All of this even though my family has generally been quite traditional in outlook.

The reasons for the decline of marriage in England are primarily social and cultural. They reflect a Europe-wide trend from which the “big island” of the United States has been relatively immune. However, I feel that the English judiciary is also significantly responsible.

Successful young people in England see marriage as an extremely risky financial endeavor. The current English law as to the division of assets upon a divorce gives a judge the power to distribute all of the assets of the parties, both pre- and post-marital, in accordance with whatever he or she deems “fair.” This creates a serious exposure to possibly unfair results and complete unpredictability. The situation is drastically worsened by the English refusal to enforce prenuptial agreements, although that very situation is about to be addressed by the U.K. Supreme Court.

The preference for unmarried relationships in which the financial arrangements can be regulated by binding agreements is illustrated by an English case just handed down on cohabitation claims over a former unmarried couple’s home. The case reinforces the fact that “partners” in England can – and must -- spell out their arrangements in writing. Kernott v Jones [2010] EWCA Civ 578.

The couple had lived together unmarried for eight years in the house they had jointly bought. They separated in 1993. Since then the man had lived in his own property, leaving the woman to pay for the remaining mortgage on the house and to fund the upbringing and education of their two children.

Both the county court and the High Court had ruled that the value of the house should be divided 90-10 in favor of the woman. The Court of Appeal disagreed, holding that it should only depart from the principle of equal interests where there is a clear indication of joint shared intentions to the contrary.

Lord Justice Wall that, “The critical question is whether or not I can properly infer from the parties’ conduct since separation a joint intention that, over time, the 50-50 split would be varied.” Since there was “a total lack of evidence about the parties’ intentions” he ruled that he could not infer such an intention from the mere fact that the woman had paid all the costs of the home for the past 17 years.

This very harsh result, which would have been avoided had the parties put their intentions in writing, has already led to calls for a change in the English law.