Louise Walker: Here’s how and why you can avoid legal limbo over cohabitation and marriage laws

The number of couples getting married continues to be in decline.
The number of couples getting married continues to be in decline.
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THE Office for National Statistics’ (ONS) latest data release on marriages in England and Wales has revealed that the long term decline in the number of people getting married is continuing.

The new data, which covers 2016, also shows that the number of religious marriage ceremonies is at an all-time low, as couples opt for what are deemed “more social” ceremonies.

To what extent do divorce laws need to be reformed? Picture posed by models.

To what extent do divorce laws need to be reformed? Picture posed by models.

This perhaps isn’t surprising given the average rising costs of weddings – and all the bells and whistles that come with it.

Meanwhile, the average age of those choosing to marry has continued to rise.

As well as second marriages having a part to play, those in their mid-thirties to early-forties typically have different financial priorities than those in their twenties.

With people reaching financial maturity later than previous generations, this age bracket is more likely to be able to budget for and afford a wedding.

Alternatively, it could simply be that having more life experience makes them more comfortable with making the commitment.

The decline in marriages also points to the growing trend for couples to cohabit, with more people choosing to set up home together, and take on the financial risks that this entails, without a legal agreement in place.

While the myth that cohabiting couples enjoy some kind of ‘common-law’ legal status has been largely debunked, a misconception persists that setting up a home together automatically affords you certain legal rights.

But this isn’t the case. In my experience, this lack of legal protection can come as a real shock to cohabiting couples who are going through a relationship breakdown.

And with increasing awareness of Government schemes such as Help To Buy
and Shared Ownership, which exist to tempt first-time homeowners onto the property ladder, it is crucial that couples consider how they protect their assets in the event of a separation.

Property law does not focus on fairness, nor does it take the couple’s respective financial positions into account in the same way that divorce law
does when relationships break down.

As a family lawyer, I’ve long grappled with the concept of outdated divorce laws, so the Government’s new plans to introduce no-fault divorce is a welcome and long-overdue step towards modernising a fundamental part of family law.

Yet, the slow pace of change means that just as progress is being made on one front, new issues are emerging on another. The growing trend of cohabitation has brought new legal issues to light and presents a real risk that more people will be left in financial and legal ‘limbo’ in the future.

The law must continue to reform to reflect modern social norms, but any attempt to reform family law always provokes strong reaction – from the legal profession and the public – and reforms that consider cohabiting couples are unlikely to be passed through Parliament any time soon.

The onus is therefore on couples to make sure they’re doing all they can to ensure they don’t run the risk of financial hardship should their relationship breakdown at a later date.

Cohabiting couples can regulate from the outset of
their relationship what their rights and obligations will 
be in the event their relationship fails.

They can do this through a properly prepared and formal cohabitation agreement to 
create a legally binding arrangement that clearly sets out how finances are to be handled if the relationship does breakdown.

For example, this can outline who owns the property – and what proportion of it – as well as define how any bills are to be split.

A cohabitation agreement can also set out arrangements to cover circumstances where either partner passes away. 
The agreement places contractual obligations on the couple and ensures certainty for the future.

While the latest datasets on marriage in England in Wales are indicative of the modern times in which we live, they also highlight that more needs to be done to ensure couples are equipping themselves with the right financial security to avoid complicated court hearings – or indeed financial shortcomings – at a later date.

While signs of progress are on the horizon, more needs to be done to ensure that marriage laws are in-keeping with social norms of today, and to prevent couples from being left out in the cold.

But until then, couples living together will need to ensure they are doing all they can to prevent themselves from being financially and legally vulnerable.

Louise Walker is the Head of Weightmans’ family law department in Leeds.