1. INTRODUCTION

It is well known that the jurisdiction of the Family Court in relation to financial remedies is very extensive for those whose relationships break down, provided they either married or entered civil partnerships at some point during their relationships. The position, however, for those who did not marry or enter a civil partnership, but still had a settled relationship together cohabiting, in some cases for several decades, is entirely different.

The current jurisdiction of the court to make financial remedy orders is to be found in Part II of the Matrimonial Causes Act 1973, although it was initially enacted in the Matrimonial Proceedings and Property Act 1970. Under sections 23 and 24 of the 1973 Act, the court can order, inter alia, periodical payments, secured periodical payments, lump sum orders and transfer of property orders. Pursuant to section 24A, it can order the sale of property, and, by virtue of section 24B, it can make pension sharing orders.

In contrast, financial provision for those who cohabit is still, to this day, virtually non-existent. If the relationship ends in death, a claim is possible, pursuant to the Inheritance (Provision for Family and Dependants) Act 1975. In life, however, the position can be bleak. In some circumstances, a claim can be made against the family home, pursuant to the Trusts of Land and Appointment of Trustees Act 1996. If there are children of the relationship, limited claims can be made in reliance on Schedule 1 to the Children Act 1989. As for adults who are cohabiting outside of marriage or civil partnership, however, maintenance, lump sums, transfers of property orders and pension sharing orders are most certainly not within the armoury of the court. Severe injustice and real hardship is not unknown.

It may well be that there was justification for this distinction in 1970, when the Matrimonial Proceedings and Property Act was enacted. In the early 1960s, fewer than one in a hundred adults under the age of 50 were estimated to have been cohabiting at any one time, compared with one in six by 2011. This chapter will focus on the huge disparity between those marrying and those cohabiting, ask whether it is fair in 2021, and suggest a modest reform to ameliorate the worst injustice.