That was the topic of debate last night chaired by the Honourable Mr Justice Coleridge before an audience of family lawyers in Bristol. The Proposer of the motion was Christopher Sharp QC who was seconded by Andrew Commins both of St Johns Chambers and it was opposed by Charles Hyde QC of QEB who was seconded by Daniel Leafe of Albion Chambers.
A vote was taken at the start of the evening with a broadly equal division between the audience.
Christopher Sharp QC took us through the statute and case-law how the courts were looking toward creating autonomy and independence. He emphasised how Society had changed significantly since the Matrimonial Causes Act 1973 came into force and that 40 years after the legislation was passed it was now out of date. The concept of a couple “living in sin” was no longer frowned upon but accepted as a normal part of an adult relationship.
He expressed that the majority of individuals expected maintenance to stop upon cohabitation, with Society considering that a permanent relationship would involve a financial committment toward each other. He emphasised that individuals should be free to make their own choices and by cohabiting a spouse had made that choice and should accept the consequences of their actions.
He outlined that many jurisdictions limited spousal maintenance to a term and some did not provide at all. He proposed that legislation be changed to end spousal maintenance on permanent cohabitation.
Charles Hyde QC opposed the motion in entertaining style and some humourous power point slides. He said that the argument was fundamentally flawed, that cohabitation was not marriage, there was no financial commitment imposed upon a cohabitant and to end an obligation upon a former spouse would lead to extreme unfairness in certain cases.
He sought to challenge how one would define permanent cohabitation and how it would lead to a collapse of the legal system as many self representing individuals would bring secret filming and evidence of spouses cohabiting to try to end an obligation and the receiving spouse also self representing now that legal aid had disappeared explaining that whilst she had a boyfriend he refused to pay anything or get married.
As each case was fact and evidence specific the current legislation provided adequately so that fairness and protection could be achieved. A spouse could reasonably expect her maintenance to stop upon cohabitation but to have it dismissed would be a step too far where following a lengthy marriage she had sought to start afresh in a new relationship only to find that may break down after a short period of time. The payer was protected he could vary downwards upon cohabitation, after all he had made the committment to pay for life upon marriage.
Andrew Commins then took up the baton taking us through the legal definitions of cohabitation as set out by the DWP, how the benefits system considered cohabitation a part of Society which contained financial consequences and that family law needed to catch up.
He went through some of the international jurisdictions which had already enshrined the cessation of maintenance upon divorce let alone cohabitation.
Daniel Leafe then responded to bring matters to a conclusion stating that to do so would be a further victimisation of women who were the usual recipients, that the definition of permanent cohabitation would be class it as the same as marriage was fundamentally wrong given that cohabitation does not create legal obligations upon an individual.
Marriage had been defined and creates an obligation for life, cohabitation whilst having a definition does not create those obligations.
Observations were taken from the floor and Mr Justice Coleridge emphasised the need for reform of the law which was now almost 50 years old and further how the law relating to cohibitants needs to be addressed but put the matter to the final vote.
The broadly even spilt before the debate had shifted slightly (5%) to rejecting the proposed motion of ending maintenance upon permanent cohabitation.
Mr Justice Coleridge summed up by saying how difficult the issue was with such fine margins between those gathered and it is no wonder that the politicians didn’t want to address the issue through legislation. However legislation was needed for the law surrounding cohabitation as recommended by the Law Commission but clearly this is not seen as a priority outside of those of us dealing with family law.
An excellent debate which continued for a number of hours afterwards with thanks to Irwin Mitchell for organising.
It would be good to hear from others perhaps in other jurisdictions and or parts of the UK as to their thoughts.