A recent report from the UK Office for National Statistics highlights that the number of 60- to 70-year-olds cohabiting as opposed to being married is higher than ever before. In 2002, the number of 60- to70-year-olds in a cohabiting couple stood at 0.7% compared to 3.8% in 2017. Could the rise of cohabitation be caused by the fear of divorce?
The study, consisting of 50- to 60-year-old participants who were never previously married shows that in 2002 only 12% were in a cohabiting relationship compared with 30% in 2017.
The Rise of Cohabitation
The ONS report shows how people’s attitudes are changing towards marriage and that many couples feel that traditional marriage doesn’t reflect the reality of modern life, despite the risks that come with cohabitation.
Following the outcome of the White v. White case in the House of Lords in 2000, many look at this landmark case as one of the most significant reasons for an increase in cohabitation. Judges were advised to take a ‘yardstick of equality of division’ approach to avoid discrimination in the division of assets and finances in the case. Essentially this meant that finances and property would be divided between both parties in a 50/50 format, to which a judge would then weigh up each of their assets to come to a final conclusion of how their finances and assets should be divided.
After the White v. White conclusion, many men feared that if they divorced, 50% of their assets would automatically be appointed to their spouse. This is supported by statistics that show in 1996 there were 934,000 cohabiting families without dependent children compared with almost 2,000,000 cohabiting families in 2016. The fact that cohabitation has almost doubled in the past two decades suggests that the White v. White case has deterred couples, and in particular men, from traditional marriage.
The Office for National Statistics found that a third of cohabiting couples are aged between 20 and 29 and are less financially secure. The statistics released by ONS explain that not only do younger people choose to cohabit due to the cost of marriage but also due to the fear of losing the little savings or assets they have.
Legal rights of cohabitating couples:
There is some confusion over the rights of cohabiting couples, with many believing in the ‘common law marriage’ myth that their legal rights are protected because they live with their partner. When in a cohabiting couple, you are able to draw up a legal agreement that outlines the rights and obligations of each party; however, this is not legally enforceable in a court of law. Legally enforceable contracts can be drawn up on specific matters such as jointly owned houses.
Each individual has no access to the other’s private bank account as a cohabiting couple. Instead, you must have a joint account in order to share access. If one party doesn’t pay in or take out money from a joint bank account, it may be difficult to claim rights to that account.
For married couples, both parties have access and rights to a joint bank account regardless of individual activity. If a partner in a married relationship passes away, the whole joint account becomes the property of the other.
In a cohabiting couple, a deceased partner’s estate will not be automatically inherited by the other partner, whereas for married couples, a deceased partner’s estate will be inherited by the other partner regardless of a will.
With cohabitation being the fast-growing family type in England and Wales, it is clear that the law has to change as more and more people are going to be in a vulnerable position if they choose to cohabit. The law has to move with the times to reflect modern society; otherwise, the financially weaker partner is likely to face financial hardship and injustice in the event of a relationship breakdown.
Kerry Smith is the Head of Family Law at K J Smith Solicitors, a specialist family law firm that deals with a wide range of issues, including divorce, domestic violence, civil partnerships, and prenuptial agreements. Kerry has over 15 years of experience in family law and is recommended by the Legal 500 guide to law firms in the UK.