Is co-habitation overtaking the tradition of marriage?

10 Oct 2019

Recent press articles highlighted that marriage is on the decline 

In a recent article in the Daily Express journalist, John Fitzpatrick, observed that women appear, “…to shun marriage as less than half tie the knot”.  The article goes on to say that the number of women who have married fell to 49.5% in 2018, being 1.3% lower than 2008.  This drop in marriage is not just unique to women, with the article noting that the proportion of men who are married has also fallen from 53.3% in 2008 to 51.5% in 2018.  This links with an article recently published in the Daily Mail, where they observe that divorce rates have dropped to their lowest point in nearly 30 years.

The Daily Express touches upon the possible cause of this, observing that couples are no longer pressured to get married if they intend to live together.  The Daily Mail suggests that the decline in divorce is due to men taking on more of the ‘marital duties’.

What both articles fail to address, however, is that whilst less people may be getting married, and in turn less divorces are taking place, the number of people choosing to cohabit is on a steep rise.  It is not that less people are committing to each other or that fewer relationships are failing but rather the phenomenon of cohabitation is over taking the tradition of marriage.

Whilst this may seem a positive step, with women having, in the main, achieved financial independence from men, cohabiting couples have very few legal rights, to such an extent that they are legally disadvantaged in England and Wales.  

Cohabitees are legally disadvantaged in England and Wales

Whilst we have laws to protect minority groups from discrimination and the vulnerable financial party in a marriage from facing financial hardship upon divorce, cohabitation law simply has not caught up, putting cohabiting couples at a severe disadvantage.  Separated cohabitees, regardless of whether they have had children together or lived together for many years, have no automatic right to claim against their ex for income for themselves (maintenance), a share of their ex’s assets to include pension, savings and so forth.  Cohabitee’s legal rights are limited to legislation that was drafted without cohabitation in mind.  Family law practitioner’s have, over the years, tried to ‘work’ the legislation to their client’s advantage but in reality the entire area needs an overhaul, especially given that more people are now choosing cohabitation over marriage.  

When cohabitation goes wrong women predominately suffer due to the lack of protective legislation

It has been suggested that to recognise the legal needs of separated cohabiting couples would undermine the sanctity of marriage.  Marriage is a formal, public and binding commitment of one person to another for life.  However, this argument fails to recognise that people have the right to chose how they live their lives.  Many cohabiting couples show the same commitment to each other as married couples however most do not understand that they have limited legal rights if they do not marry and are therefore quite innocently putting themselves in a vulnerable position.  They presume the law will protect them on the basis they are ‘common law spouses’ – sadly this is not the case.  Worryingly it is predominately women who suffer due to the lack of protective legislation, with many having given up their careers to raise children and in turn have inhibited their earning capacity and ability to build up assets in their own name.

The UK has come very far in introducing legislation that recognises, and respects, people’s right to live their personal lives as they wish, an example of this is the introduction of civil partnerships followed by same sex couples being able to marry.  The UK has also been a leader in protecting minority groups, introducing anti-discrimination laws, yet the current legislation appears to discriminate against cohabiting couples with women being the primary victim of the failure to introduce adequate protective legislation.  

The law is complex but the position is not entirely hopeless

The position is not, however, entirely hopeless.  It might be that a cohabitee can try to claim a ‘beneficial interest’ in their ex’s property (or properties) but this area of law is complex and any litigation initiated  is protracted, expensive and the outcome uncertain.  Legal advice should be sought.  If the cohabitee has children with their ex, who are of minority, then they will be able to claim child maintenance for the children (a monthly payment for the children).  Other financial support may be available under Schedule 1 of the Children Act 1989, such as school fees or a property to live in until the children reach a certain age but this is simply a short term solution and does not provide long term financial protection.  Again, legal advice should be sought.

Seek legal advice early

The family team here at DMH Stallard are able to help.  We can advise you as to your position if you are cohabiting or contemplating cohabitation.  If you have children we can advise as to how to meet their needs.  Whilst the law is inadequate we are skilled in negotiating a favourable outcome for you, so do get in touch.

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