Legal Issues on Divorce

Cohabitation – Why The Law Needs Changing In Order To Protect Modern Families

While marriage is still popular, cohabitation outside marriage is indisputably on the rise. In fact, over the last twenty years, the number of people living together outside marriage has approximately doubled. The level of protection offered to unmarried couples in England and Wales in the event of a separation, however, has not. Scotland does have some recognition of unmarried partnerships, but even so it has nothing like the concept of “common law marriage” which many people believe does exist.

The rise and rise of cohabitation 

Back in 1996 there were about 1.5 million cohabiting couples in a UK population of about 58 million people. In 2017, there are about 3.3 million cohabiting couples in a UK population of about 66 million. It’s unclear what has fuelled this rise. Certainly living together no longer carries the social stigma it once did, but just because you can do something doesn’t mean you necessarily want to. Perhaps the (potential) expense of weddings or the prospect of having to go through a divorce is making people wait longer and think harder before they decide whether or not they want to “tie the knot” at all, let alone with whom. Whatever the reason, the fact remains that increasing numbers of couples are cohabiting rather than marrying or entering into civil partnerships and yet the law relating to such relationships is essentially conspicuous by its absence.

There is no such thing as “common-law marriage”

In legal terms, marriage is a contract between two parties, which creates duties and obligations between them. As part of the marriage contract, couples agree to pool their assets and hence when a marriage is ended through divorce, assets are divided between the separating halves of the couple on the basis of law and precedent. This is by no means a perfect system and in the real world, the nature of divorce may be that neither party feels completely satisfied that the deal was fair, but it does at least offer some level of protection for people in situations where there is clear financial disparity between the partners. Contrary to what about two thirds of people appear to believe (according to a recent ComRes poll), there is no such thing as common law marriage and hence there is, currently, practically no legal protection for those ending cohabiting partnerships in England and Wales and very little in Scotland.

Lack of legal protection exposes cohabiting partners to financial risk

When couples cohabit outside of marriage there is no automatic agreement to pool assets and there is no formal process to follow to disband the union. Hence, dividing assets can ultimately turn into a matter of proof of ownership plus practicalities of possession. This is probably most evident when it comes to property. If the house is in the name of one person, then there is a high degree of likelihood that, under current laws, they will keep full ownership of it, even if the other party has contributed to the mortgage. There are some circumstances in which a party could claim a “beneficial interest” in the property, but these are limited. Given the strength of the housing market and the rise in cohabitation, this in itself would seem a strong argument for the government to act on the urging of both members of the public and members of the legal profession, including Baroness Hale, the president of the UK’s supreme court and introduce much stronger legal protection for couples ending cohabiting relationships.

Author Bio Kerry Smith is the head of family law at K J Smith Solicitors, a specialist family law firm who deal with a wide range of issues including divorce, domestic violence, civil partnerships and prenuptial agreements.

Divorce Rates in the UK Rise But Stay Well Below Their Peak

The year 2016 saw the number of divorces amongst opposite-sex couples rise by 5.8% to 106,959, although this is still about 30% off its 2003 peak of 153,065. When considering the reasons for this, three possibilities clearly stand out.

Practical difficulties of divorcing

Marriage is intended to be a lifelong commitment and exiting that commitment can lead to all kinds of expensive and challenging complications. While some of these could be reduced by the introduction of “no-fault” divorce, possibly together with a greater awareness of and clarity around pre-nuptial agreements (pre-nups), others are far more difficult to resolve.

The most obvious example of this is the division of property and the practical consequences of dividing a household, many of which revolve around the fact that adults living as a couple can generally live more cheaply than two individuals living in their own homes. These difficulties can increase exponentially with the arrival of children, particularly in their pre-school years, when the need for childcare is at its greatest.

Rise in cohabitation

When couples cohabit outside of marriage, they can go their separate ways without having to enter into formal divorce proceedings but this has both advantages and disadvantages. On the one hand, it means that couples without children can simply agree to part company and move on, while couples with children can make their own arrangements for their future care and maintenance. On the other hand, when couples split on less-than-amicable terms, this can lead to difficulties in dividing assets fairly.

For example, while there are certain situations in which a partner whose name is not on the deeds of a property may be held to have a “beneficial interest” therein, there are certain, specific, requirements to be met in order for this to be recognized, general help, financial or otherwise, is highly unlikely to qualify. Because of this, it is strongly recommended for co-habiting couples to have formal agreements in place regarding ownership of assets, at least significant ones such as property.

Later marriage

For much of history, people have been encouraged to marry as early as possible for a number of entirely practical reasons. Women, in particular, often needed to marry for economic reasons, as the novels of Jane Austen show only too clearly. In modern times, however, women have much greater opportunities for earning an income and as such are under less economic pressure to marry.

Similarly, the fact that women can now reasonably expect to be able to have children well into their late thirties and even early forties also reduces the need to marry at a younger age as does the fact that having children outside of marriage is, by and large, socially acceptable. Putting all of this together means that instead of marriage being the time when couples can formally start to live together, in their first home, it is more likely to be a milestone in a relationship after couples have already lived together for some time and, in simple terms, have already established that they can do so successfully, hence are less likely to divorce.

Fletcher Day are a full service law firm based in Mayfair, London. There team of divorce solicitors in London can advise on a range of matters relating to family law including divorce, prenuptial agreements, civil partnerships and separation agreements.

Reasons to Consider Entering into a Prenuptial Agreement

Reasons to consider entering into a prenuptial agreement 

Prenuptial agreements, often known as prenups, are not (yet) legally binding in the UK, but they are legally relevant. Based on a 2010 ruling, divorce courts will accept prenups as valid, provided that both parties entered them willingly and understood their implications, unless there is a particular reason why it would be unreasonable to enforce them in any particular situation. As the prenup is between the two individuals entering a marriage/civil partnership, it is entirely distinct from the obligation to support any children arising from the union.

 

Prenups have moved out of the celebrity world and into the mainstream

Celebrity prenups (or the lack thereof) have long been fodder for the gossip columns but over recent years they have moved into the world the rest of us live in. While they are commonly associated with situations in which couples have widely different financial values, they can also be used to draw lines in the sand in other situations, for example to highlight anything one of the parties considers a personal possession which they would like to keep in the event of a divorce/dissolution. Setting this out up front can be easier than trying to reach an agreement in the potentially heated atmosphere of a couple parting ways.

 

Realistically, failure is an option

Around one third of marriages end in divorce, which means that even though the odds of success are still on your side, the odds of failure are high enough to deserve to be taken seriously. Even though the UK has yet to implement the concept of “no faults divorce” in the real world, divorce/dissolution can come about for reasons which have nothing to do with fault.

People make mistakes and sometimes couples can agree amicably that their marriage was one of them and move on in a respectful manner. This is particularly beneficial if the split comes after the arrival of children.

 

Mediation and legal advice are the road to success

In principle, mediation can take place before or after a legal agreement has been drawn up. In practice, it probably helps to have it first and keep open the option of further mediation afterwards if need be. Mediation is simply a process by which couples have a full and open discussion of their situation and expectations, which is facilitated by a mediator.

The mediator’s role is to keep the discussion on topic and to help both parties to express themselves and to learn to understand each other’s views until finally they reach a place of agreement, which the mediator then converts into a memo of understanding, which can then be given to the solicitors acting for the respective individuals.

This makes it easier for the solicitor drawing up the prenup to create a document which accurately reflects their client’s wishes and for the solicitor acting on behalf of the other party to analyse the agreement and ensure that it is appropriate for their client. While prenups are like insurance in the sense that they are a product you buy in the hope that you are never going to use them, just like insurance, it can be very helpful to know that you are covered if the need arises.

Fletcher Day are a full service law firm based in Mayfair, London. There team of family law solicitors in London can advise on a range of matters relating to family law including divorce, prenuptial agreements, civil partnerships and separation agreements.