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The Office for National Statistics has said that "marriage is more stable than living together". This follows analysis of Census results, which show that 80% of couples who married in 1991 were still together a decade later compared with 60% for cohabiting couples. Of those cohabiting couples who stayed together, most had married their partner.
Jill Kirby, Director of the Centre for Policy Studies, said "Living together is not an equivalent to marriage for family stability. That's why it's important to protect and support marriage, in the interests of children."
Marriage rates are currently at their lowest level since records began in 1862, with just 232,990 weddings taking place in England and Wales during 2008. This decline is expected to continue. The same cannot be said for cohabitation; the number of cohabiting couples is projected to rise from 2.3 million in 2008 to 3.8 million in 2033.
ONS also predicts that cohabiting couples will become older, with those aged between 45 and 64 set to more than double and those aged over 65 set to quadruple.
In contrast, the number of divorced adults is expected to remain unchanged between 2008 and 2033 although there are some interesting predictions relating to age groups. By 2033 the number of divorcing couples aged between 35 and 44 is set to halve but those aged over 65 is projected to double from 8% to 15%.
These are worrying statistics considering the current lack of legal protection for cohabiting couples who separate. Unlike divorcing couples and civil partners, cohabiting couples must rely on the general law of implied trusts, estoppel and contract, which often leads to one cohabitant leaving a relationship of many years without any form of financial security or compensation.
The Law Commission recommends creating a scheme which would enable cohabiting couples to apply for financial relief on separation. The couples would need to meet certain eligibility criteria and not have entered into an "opt out" agreement.
The eligibility criteria proposed are:
• They have lived as a couple in a joint household for a minimum duration (recommended to be somewhere between 2 and 5 years)
• OR they are by law the parents of a child born before, during or following their cohabitation.
In order to qualify for financial relief under the scheme, the cohabitant making the application would need to prove:
• The other party had retained a benefit, OR
• the applicant had suffered an economic disadvantage
as a result of contributions the applicant had made during the relationship.
Such contributions would not be limited to financial contributions and would include future contributions, for example the future care of children following separation.
The court would have the power to order lump sum payments, property transfers and pension sharing although, unlike divorce, not the payment of maintenance (save for child maintenance which is payable in any event.)
Unfortunately, there is no sign of the Government taking these proposals forward and separating cohabitants are advised to enter into a cohabitation agreement. This would set out their rights on separation and could include arrangements for financial support, dealing with debt or caring for children. As with a pre-nuptial agreement, it allows couples to decide in advance who will keep specific assets and the circumstances in which one party may have to provide ongoing support to the other following separation.
Cohabitation agreements are not binding on the court but are very good evidence of what was agreed by the parties at the start of their relationship. Cohabitants should also seek advice on trust deeds relating to property rights and making a Will.
Katherine Longhurst is a solicitor in the Stephens Scown Exeter Family Team. Stephens Scown has offices in Exeter, Truro and St Austell. Its family solicitors advise clients on a wide range of family law including matrimonial and partner issues including divorce, finance and children matters.
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