STOP PRESS : Does Boris need a non-cohabitation agreement

In a land of black BMW’s, dark suits, and the odd shock of blond Old Etonian hair … was a lad called Boris.  Separated from Marina, but not divorced, cohabiting or not with a lass called Carrie, the press wondered will he ever settle down? 

Entering the doorway of no 10 alone, his lawyers were wondering who will be our first lady?  As the glossy black door and closed and shut the world out, Boris called Adrian his trusty Counsel, ‘What do I do, do I move Carrie in?’

Adrian told him about the case of GW v RW [2003] EWHC 611, with Nicholas Mostyn QC sitting as a Deputy High Court Judge, wherein he famously said:-

“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”.

‘Nowadays,’ continued Adrain ‘in every case, it is almost automatic when computing the length of the marriage, to add in premarital cohabitation’.  Boris spluttered ‘It’s a good job we had that row in early July, does that put a seam in seamless?’.  ‘Boris, have you never heard of domestic violence and legal aid?’.  Boris reached for the brandy.

Adrian continued with his legal spoutings, some falling on ringing deaf ears, ‘Boris, recently in MB v EB [2019] EWHC 1649 (Fam) Cohen J had to determine the length of the marriage, and that can affect the quantum of the marital acquest, or pension entitlement.  Let me read you out a section from that case (Boris laid his phone down, taking it off loud speaker, flopped on the settee and caressed his brandy glass, a purring cat brushing endlessly against his legs).

‘This is what Mr Justice Cohen said at paragraph 50 citing from an earlier case.  

‘At paragraph 68 of IX v IY [2018] EWHC 3053 (Fam), Mr Justice Williams said this:

What the court must be looking to identify is a time at which the relationship had acquired sufficient mutuality of commitment to equate to marriage.  Of course in very many cases, possibly most cases, this will be very obviously marked by the parties' cohabiting, possibly in conjunction with the purchase of a property.  However, in other cases, and this may be one of them, it is not easy to identify.  The mere fact that parties begin to spend time in each other's homes does not of itself, it seems to me, equate to marriage.  In situations such as this the court must look to an accumulation of markers of marriage which eventually will take the relationship over the threshold into a quasi-marital relationship which may then either be added to the marriage to establish a longer marriage or becomes a weightier factor as one of the circumstances of the case’

‘So Boris, you’d better remember that the date when people start to cohabit, or cease to cohabit for that matter, can impact on the result in a financial remedy case’.  ‘But I’m not yet divorced’ spluttered Boris.  ‘I know, but we’re dealing with that’.

‘Look Boris, family practitioners are familiar with cohabitation agreements, which have a valuable place in setting out responsibilities, financial or otherwise, in a non-marital relationship.  But as the general public become more aware of the law in this area, (possibly with the knowledge that the longer the period of cohabitation the higher the potential claim) it may be important for a party or the parties to be clear when they are not cohabiting’.  ‘I see’ said Boris tipping the contents of the brandy decanter into his glass.

Adrian continued ‘I don’t pretend that such is necessarily common.  But it may be one party to a relationship wants to make it clear that cohabitation is not the status of the relationship.  As you heard from what Justice Cohen repeated, it is often easy to recognise cohabitation from a particular factor eg joint house purchase, but every case is different.  You aren’t buying no 10 are you?’.  ‘Well I hope to be here a long time’ said Boris ‘and it’s nearer Parliament than the flat!  What a good idea Adrian!’.

‘Hmmm’ mused Adrian with lifted eyebrows ‘you will remember when we wrote to Marina specifically stating the date when you both separated so she could not claim a longer period of the marriage?’  ‘Hmmm’ Boris searched his thoughts ‘… did you, I must have been busy on the campaign trail.  Did I instruct you to do that? … well must have been when I was tipping that waitress’.

‘Well Boris, you’re in the formative stage of a relationship with Carrie, well, that’s what I read in the gutter press.  She’ll be staying with you at no 10, wink wink, for extended periods of time perhaps, even Chequers, so perhaps we ought to specifically mark that you are not not cohabiting’.  I’ll get onto her lawyers to see if she’ll sign a non-cohabitation agreement, ok?’

‘Tastes good to me’ sighed Boris.  ‘What?’ demanded Adrian, ‘Sorry Adrian, lovely Remy Martin Louis XIII brandy, worth moving into no 10 for!’

‘Ok Boris, over and out’.  ‘I’m not over or out’ bawled Boris as the phone went dead.

Adrian reflected ‘There may not be many occasions when both parties want it recorded they are not cohabiting, but I’d better get on and help old mop head.  I hope Carrie agrees’.