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Family Law Blog

Comment on divorce & family law 

Why the fall in the rate of divorce isn’t all good news


Financial settlements.

Figures released by the Office for National Statistics at the end of 2016 show that the likelihood of marriage ending in divorce has dropped to its lowest level in forty years. The figures show that in 2014 less than one couple in every 100 married couples split. Reason to celebrate you might think? Perhaps couples are getting on better and not separating? Dig deeper into the statistics however and you realise the news isn’t all good. 

The biggest reason behind the low divorce rate is the rise in popularity of couples living together, unmarried.

I sometimes wonder if cohabitation is on the increase because people think that if marriage ends in divorce it will cost them an awful lot of money whereas separation of an unmarried couple is easy.  The truth of the matter is that separating the financial affairs of an unmarried couple, or coming to an agreement about the care of their children can be complicated for all couples, married or not.

The legal position on property for unmarried couples

If a cohabiting couple separate and they have children together, they would both have parental responsibility for any children and therefore the Courts would deal with the matter of the children as if they were married. The procedure in relation to an application through the Court is no different. 

In relation to financial matters couples often believe that they are part of a common-law marriage. There is no such thing. Other couples believe that as they are not married the other party cannot claim against their personal assets. The reality is that things are not as simple as all that.

When couples cohabit together without marriage then any breakdown of their relationship is governed not by the Matrimonial Causes Act 1973 as in divorce proceedings but by the Trust of Land and Appointment of Trustees Act 1996 (TOLATA) as far as property ownership is concerned. If the property is held in joint names, then the Court would follow the strict property rules and the Court would have to look at the situation as to who owns the property and in what shares. If the property is not in joint names but in the name of one cohabiting party but the other cohabiting party has contributed towards that property, for example by way of mortgage payments, improvements to the property, or in fact by what has been said or suggested to them by the other party then they can establish an interest by way of a Trust. 

It may be the case therefore that the divorce rate itself has slowed down but this has only subsequently led to an increase in the number of applications under TOLATA.

Case law in relation to cohabiting couples goes back many years but the situation is still very much the same. An interest/trust can be obtained either on an implied basis, a resulting basis, or a constructive basis. Recent case law suggests that it is now becoming even easier to obtain an interest in the other party’s property.

Our advice as family lawyers is that cohabiting couples should not simply enter a relationship thinking they can keep what they have to themselves. Instead they should have one eye on the fact that either party could potentially make a claim against the other. It’s sensible to take advice about how property is owned and to consider a cohabitation agreement, which sets out the position between the parties when they decide to move in and live together.

Andrew Robotham
Divorce & family lawyer, Derby

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