In the Media

Unmarried couples need new legal rights, says reform judge

PUBLISHED December 7, 2009

Two million unmarried couples need new legal rights to protect them from injustice if they separate, the new senior judge in charge of law reform has said.

In many cases long-term partners cannot be adequately protected by existing laws, according to Lord Justice Munby, chairman of the Law Commission. It was time that the law was brought up to date with changes in society. ?It is a fact that the number of people marrying today is less than it has been for over 100 years,? he said.

The comments by Lord Justice Munby, who was giving his first interview since taking up the post, will boost the case for a reform of the law pending a decision expected next year from the Government.

The judge also indicated that there should be a review of the law on how a married couples? finances are split on divorce. The Law Commission would soon be consulting on its next programme of work, he said, and the Court of Appeal had said that this area of law should be looked at.

Senior judges had consistently called for reform in this area after a series of ?big money cases? with large awards and settlements. The Law Commission would therefore have to ?think very carefully? and come up with good reasons for not doing it. Such cases have prompted accusations of unfairness, with wives taking large shares of their husband?s fortune.

It was unsatisfactory, he said, that there was a single set of criteria for dividing the wealth of all couples, however large the sum involved. ?It might be an advantage having an approach for each.?

On unmarried couples, Lord Justice Munby said that a very significant proportion of children were conceived and born out of wedlock and the family unit was ?very, very different from when I grew up?. Many children lived with step-siblings or others to whom they were not related, and were brought up by single mothers whose children were by different fathers.

?We cannot blind ourselves to the reality of this, particularly ? and this has been the experience of judges ? when the consequence of this, and the undying myth of the common law marriage, is that the lack of [legal arrangements] can cause serious injustice.? Couples ?assume they will have some kind of protection,? he said.

?An astonishing number of people believe that there is something called common law marriage which will entitle them to a share of finances and property.?

He said that one way to tackle this myth was to educate people to understand the situation. But in his 35 years of professional practice such efforts had clearly had no effect ? and ?these injustices continue?.

The comments from Lord Justice Munby, who recently took up his three-year post in charge of the law reform watchdog, come as the Government awaits research findings from Scotland, where since 2006 unmarried couples have been granted legal rights on separation. The Law Commission of England and Wales, which he now heads, put forward proposals in 2007 for extending some legal rights where couples have children or would suffer hardship without a financial settlement.

Two months ago it put forward separate reforms under which unmarried couples would automatically inherit some of their partner?s estate on his or her death. Lord Justice Munby, a judge since 2000 in the family and administrative divisions of the High Court, said he did not believe that giving unmarried couples legal rights on separation as proposed by the Law Commission would undermine marriage.

?I don?t believe [they do],? he said. ?Lawyers ? and I would have thought it was the same for the Law Commission ? have to have regard to the society in which we live; and it is a fact that our society has changed in some respects immensely, even in the time I have been a practising lawyer.?

Lord Justice Munby said that the days had long since gone when the business of judges was to enforce morality.

Although ultimately such changes were for Parliament, that did not mean the Law Commission should wash its hands. It had to recognise realities and come up with suggestions for reform, if the law created injustice.

He added that the Law Commission would shortly announce a ?very exciting project consultation on adult social care?, or all the law relating to the care that people can receive in their own homes, from meals on wheels to help with washing and dressing. The reforms would save millions in bureaucracy and red tape, he said.