I saw this article in the London Metro yesterday (here published in the Daily Mail) Grandmother loses home.

Sadly this is a fairly common story and whenever I see a story like this there is always some comment from a family lawyer or judge complaining about the law and how it should be changed to bring it up-to-date. The complaint is always made that the current law does not protect cohabitees and that this is unfair and outdated. As a family law solicitor I am supposed to agree with this particularly if I want to be considered modern and forward thinking. However I do not.

I think we should have the choice whether to marry or not to marry. Marriage is a serious commitment which is more than simply a piece of paper. Marriage is a legal contract which includes a legal obligation to provide your spouse with financial support for the rest of their life (note that last bit it is important). That legal obligation does not end when you get divorced. It does not end because you have met somebody better, prettier, younger, stronger, faster or richer. It does not end because you have a decree absolute or even because you are dead. The financial obligations that you have for your spouse end when you obtain a financial court order which says – that is it you have fulfilled your legal obligations and the legal contract is at an end. This is commonly called a clean break.

In this case it is the wife who is protected not the girlfriend and her claims come first. Because Mr Martin did not divorce his wife her financial claims against him were never resolved and dismissed by the court, no clean break was achieved and she is entitled to claim against his estate now that he is deceased because he had a duty to support her for the rest of her life.

Marriage is an important and substantial legal commitment and the tradition and ritual of marriage helps us to understand that. I do not agree that we should be obliged to take on that commitment when we have chosen not to get married but live with someone instead. That is a free choice. We choose to live with our partner and not to marry (yes it is still a choice even if the other person will not marry you) and we should accept personal responsibility for this choice. Instead of changing the law we should change people’s understanding of the law and attitude to marriage.

Marriage should not be a dying institution it is important to our society and particularly to the emotional and financial security of our children. Instead of undermining marriage with new laws which support cohabitation we should ensure that people understand that if they choose NOT to get married there are consequences. The advantage of not getting married is that you choose not to take on all of the legal and financial commitments that go with it. Surely we are entitled to make this choice.