John Hooper & Co

Solicitors

Newsletter 13 – Should cohabitation be taken into account when assessing the rights of one spouse against the other in the event of divorce

HOW LONG IS A MARRIAGE?

One of the factors which has to be taken into account when assessing financial claims is the duration of the marriage. This has become particularly relevant in recent times. In 1981 it was decided in Foley v Foley that a distinction should be drawn between the years of cohabitation and the years of marriage:-

“In the great majority of cases, public opinion would readily recognise a stronger claim founded upon years of marriage than upon years of cohabitation”.

In Lambert v Lambert in 2003 the Court of Appeal indicated that in long marriages (set at 20 years or more at that time) a starting point for the division of matrimonial assets should be 50/50. This led to subsequent cases where it was argued that the period of cohabitation prior to a marriage should be added to the period of marriage in order to extend the period of the relationship and to endeavour to stretch the argument in favour of equal division of the assets.

In GW v RW Nicholas Mostyn QC who was sitting as a Deputy High Court Judge said:-

“That (Foley v Foley) decision is now nearly 22 years old. The case of White v White has emphasised that the law in this area is not moribund but must move to reflect changing social values. I cannot imagine anyone nowadays seriously stigmatising pre-marital cohabitation as “living in sin” or lacking the quality of emotional commitment assumed in marriage. Thus in my judgement, where a relationship moves seamlessly from cohabitation to marriage without any major alteration in the way the couple live, it is unreal and artificial to treat the periods differently”.

That case was followed by M v M where the Judge stated clearly that she drew no distinction between the years of cohabitation and those of marriage.

It is now rare for the parties to a marriage to have not lived together for any period prior to the marriage ceremony. To that extent and on the basis that save for the marriage ceremony and the piece of paper, the parties have continued their lives in the same way both before and after the ceremony there is sense in the way that Nicholas Mostyn and others have approached this issue. However the words of the statute are clear. Section 25(2)(d) says “the duration of the marriage”. The Courts have therefore “stretched” the meaning of the word “marriage” to suit modern times.

Finally in McCartney v McCartney (Mills) Mr Justice Bennett made a distinction between a committed relationship and a “trial period of cohabitation”.

June 2008

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