Posted on 30.11.15
On Monday the Office for National Statistics (ONS) released annual statistics on divorces that took place in England and Wales in 2013. They found that divorce rates dropped 2.9% in 2013 where 114,720 divorces were granted compared to 118,140 in 2012. These statistics follow a general decline in the number of divorces between 2003 and 2009 before rising by 4.9% in 2010. These statistics do not include divorces where couples married abroad or divorces of same sex couples, given that the first marriages did not take place until 29 March 2014.
So what has caused the decline in divorce?
The decline in divorce is also in line with a fall in the number of marriages, so it would appear more people are choosing to cohabit rather than marry.
In 2011 the ONS produced an article detailing the trends in cohabitation and marriage in Britain between 1979-2007. In 2004-2007 they found that 61% of men and 64% of women aged between 25-44 had cohabited at some point in their lives, compared with 38% of men aged 45-59 and 35% of women in the same age category. This data clearly shows that cohabitation has become increasingly socially acceptable and in 2006 a British Social Attitudes survey found that people thought there was “little difference socially between being married and living together as a couple”, and many felt “there was no point in getting married” that it was “only a piece of paper”.
What protection do cohabiting couples have?
There is often a misconception by cohabitants that they are afforded the same rights and responsibilities as married couples, but there is no so such thing as a ‘common law husband’ or ‘wife’.
When a cohabiting relationship breaks down the parties have no guaranteed rights to ownership of each other’s property and the Courts have no power to override the legal ownership of a property and divide as they do on divorce. With cohabitee cases the Court’s hands are tied – it can only rule on what the parties actually own, and what share they are entitled to, according to technical land and trust law principles. More importantly, it cannot transfer or adjust an interest in a property to fix an unfairness.
Rights of survivorship do not apply to cohabiting couples, so unless a Will has been made prior to death, an unmarried partner may not be entitled to a share of the deceased’s party’s estate. If no Will has been produced then the laws of intestacy will apply and the unmarried partner may need to consider a claim under the Inheritance (Provision for Family and Dependents) Act 1975 for financial provision.
Cohabiting couples are also not afforded the same tax exemptions as married couples as they are considered as single persons for taxation purposes.
So what can cohabitees do to protect themselves?
Cohabiting couples should seriously consider having a cohabitation agreement drawn up, also known as a ‘living together agreement’ or a ‘no nup’ to set out what is to happen if the relationship breaks down. The agreement can include both parties’ assets and liabilities, and even things like who will keep the beloved family pet! It is important that both parties’ seek independent legal advice and if it’s properly drawn up, it is likely to be upheld by any Court.
Whilst most people believe agreements of this nature are unromantic and not required (“my relationship will never break down so I do not need an agreement”), it is a lot cheaper to deal with matters at the start of the relationship than spending money fighting about assets after the relationship has ended.
Declaration of Trust
When buying a property together, it may be advantageous to enter into a Declaration of Trust. This document can also be drawn up if a one party already owns a property and has their partner move into it. A Declaration of Trust provides written evidence of the agreement between the two parties as to who owns the beneficial and equitable interests in the property, and sets out how the proceeds of sale are the dealt with in the future. This is particularly helpful where the parties have put in unequal contributions to the purchase price, or where, for example, a parent has gifted a deposit and wants to safeguard their investment.
If you are thinking about a cohabitation agreement or any family law matter please do not hesitate to contact me on 0343 507 5151. The Family and Matrimonial team at Gorvins can advise you as to the best way to protect your interests. If you prefer, you can send an email addressed to me at firstname.lastname@example.org.