In June 2017, the Office of National Statistics published the latest statistics for the number of divorces, dissolutions and annulments of marriage in 2015. Whilst the divorce rate has fallen by 9.1% since the previous year, the numbers once again reveal a growing trend, namely an increase in the number of cohabiting couples and a decline in the number of marriages.  In this blog, we take a look at the figures, what they now represent and how the law still needs to play catch up in light of the growing cohabiting population.

Key points:

• There has been a decrease of 9.1% in opposite-sex divorces compared to the previous year and a decline of 34% from the peak in 2003.
• There were 101,055 divorces of opposite-sex couples in 2015 and 22 divorces of same-sex couples in the same period (but note that same-sex marriages have only been possible in England and Wales since 29 March 2014).
• The average age at divorce for opposite sex couples in 2015 was 45.9 years for men and 43.5 years for women.
• The median duration of marriage for divorces granted to opposite sex couples in 2015 was 11.9 years, increasing slightly from 11.7 in 2013 and 2014.
• The estimated percentage of marriages ending in divorce (based on certain assumptions) is 42%. Around half of these divorces are expected to occur in the first 10 years of marriage .

What do the figures show?

The figures undoubtedly represent the changing face of the ‘modern family’. This is nothing new. We have known for some time that we have an increasing population of cohabiting couples, often with children. What is still relatively unknown by many couples who cohabit are their legal rights (if any) on separation and this is an area in which family practitioners and Resolution have long sought change.

The ONS report confirms that ‘changes in attitudes to cohabitation as an alternative to marriage or prior to marriage, particularly at younger ages, are likely to have been a factor affecting the decrease in divorce rates since 2003; levels of cohabitation increased over this period while the married population declined.’

The ONS reports that in 2016:

• There were 18.9 million families in the UK.
• There were 12.7 million families of married couples or civil partners. This was the most common family type.
• Between 1996 and 2016, the number of cohabiting couple families doubled from 1.5 million to 3.3 million.

This last statistic is arguably the most telling. Whilst cohabitation can of course be a precursor to marriage, many couples are still choosing not to marry and continuing to live together and often choosing to start a family.

The present law relating to cohabitation

Cohabiting families are now the fastest growing family type in the UK. So will the latest statistics be the catalyst for change?

Whilst the law has in place a mechanism for ensuring children are adequately provided for financially on family breakdown (whether or not the parents are married), the same cannot be said for cohabiting couples without children and in any event, financial provision will be made for the benefit of the child only. This leaves many individuals vulnerable and financially insecure when the relationship ends.

• In 2007, the Law Commission published its report entitled ‘Cohabitation – the financial consequences of relationship breakdown.’ The report contained various recommendations regarding the law as it affects the property and finances of cohabitants on relationship breakdown and on death.  Disappointingly, the recommendations were not taken forward by the Government during that Parliamentary term.
• This was followed in 2008 by Lord Lester’s private members Cohabitation Bill, again as an attempt to introduce rights for cohabitants on relationship breakdown and on death. However, the Bill failed to progress beyond committee stage.
• Lord Mark’s Cohabitation Rights Bill is the latest attempt to bring this matter to the political fore once again. The Bill is in its early stages of passing through Parliament and the First Reading of the Bill in the House of Lords took place on 4 June 2015.

Presently, cohabitants have limited rights when the relationship comes to an end, either through separation or by death of one of the parties. As a starting point, any assets held in sole names will be retained by the owner outright. Jointly held property will be split either in accordance with what was recorded in writing at the time of purchase or by establishing the common intention of the parties as to shares of ownership.

Where property is held in one name only, for example the house in which the parties lived, it will be for the other party to show that they have acquired an interest in this property under the Trusts of Land and Trustees Act 1996. For example, they may have contributed financially towards the upkeep of the property, made payments towards the mortgage and household bills and therefore they may be able to establish a beneficial interest in the property. But such claims are often heavily contested and can leave one party in a desperate financial situation on relationship breakdown. On death, a party may be able to make a claim as a dependent under the Inheritance (Provision for Family and Dependants) Act 1975 if no provision for them has been made in a Will.

Neither situation is particularly attractive in circumstances where the parties may have spent many years in a relationship akin to marriage and yet the weaker financial party may be left high and dry when the relationship ends.

How can cohabiting couples protect themselves?

Establishing rights as a cohabitant is a complex area of law.

• Some couples choose to enter into a cohabitation agreement which sets out how they will manage their affairs and clearly stating how property will be held.
• Parties can also enter into a Deed of Trust to show who has legal and beneficial interest in property.

Where there is no such documentation on relationship breakdown, there will of course be uncertainty and a court will be left to infer intention and find evidence of a constructive trust for example in order to establish whether a party has an interest in property. This will in most cases boil down to ‘who said what’ at the time and has poses inherent evidential difficulties for the court.

• Finally, it is important for parties to update their Will to ensure parties are provided for as per the testator’s wishes, else property will pass in accordance with the rules of intestacy (crucially leaving out a cohabiting party)

The shift away from marriage to cohabitation is an upward trend. Reform is required to offer legal protection to cohabitants when relationships come to an end. For more information, please take a look at Living Together or contact any of our family law specialists at E: hello@flip.co.uk

Sources:

The Office for National Statistics, Divorce in England and Wales 2015, June 2017 https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce

ONS Statistical Bulletin: Families and Households in the UK 2016 https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/2016

This article was written by Family Law in Partnership associate Carla Ditz. Carla advises on all aspects of divorce, children and cohabitation matters. Carla also has a keen interest in religious divorce, in particular the Jewish Get, and advises clients on what steps need to be taken and at what stage during the civil divorce process. Carla’s aim is to develop fair and practical solutions to the problems that may arise during family breakdown. She helps clients manage family disputes in the least confrontational way possible producing a positive, workable outcome for the family going forward. Where the involvement of the Court is necessary, Carla guides clients through the litigation process focusing on the specific needs of each client.