The new Government may seek to reform aspects of family law to reflect social change, including trends in cohabitation and divorce. This article looks at some areas where there have already been calls for reform.
Rights for cohabitants
Increasingly couples are choosing to cohabit rather than to marry, with more children than ever being born to couples who are not married. Between 1996 and 2014, the number of opposite sex cohabiting couple families increased from 1.5 million to 3.0 million, while the number of married couple families fell from 12.6 to 12.5 million.
In 1996, 10% of opposite sex couples living together in the UK were cohabiting rather than married; by 2014, 19%, of opposite sex couples living together were cohabiting.
Chart: The number of cohabiting families
The number of cohabiting families has doubles since 1996, while the number of married families has declined: opposite sex couple families, 1996 and 2013, millions
Many cohabiting couples will be unaware that there is no specific legal status for what is often referred to as a "common law marriage". This can lead to unforeseen and unintended consequences when their relationship ends, either through separation or when one partner dies.
Although cohabitants do have some legal protection, the law is still largely based on providing rights and responsibilities for married people and civil partners. For example:
- When a marriage or civil partnership ends, the court has a wide discretion to override strict legal ownership and divide property, taking into account all the relevant circumstances (giving first consideration to the needs of the parties' children while they are minors). There is no corresponding power when cohabiting couples separate (although in some circumstances, the court can make an order for financial support for children).
- When a couple live together without getting married or forming a civil partnership, and one of them dies without leaving a valid will, the survivor has no automatic right to inherit their partner's estate: this is the case no matter how long they lived together and even if they had children together. In the same circumstances, a surviving spouse or civil partner would automatically inherit a large part, if not all, of the deceased's estate.
In 2007, the Law Commission recommended introducing a statutory scheme for cohabitants who had children together or who had lived together for a specified length of time, to claim financial relief on separation.
In 2011, the Law Commission further recommended that rights be given to some cohabitants to inherit where there is no will. To date these recommendations have not been implemented.
Will the new Government legislate to bolster the rights of people who choose not to marry or enter a civil partnership? Would this undermine the institutions of marriage and civil partnership and, if so, should this be an influential consideration?
The future of civil partnerships
Only same sex couples have the option of entering into a civil partnership. Since the introduction of marriage for same sex couples in March 2014, the future of civil partnerships has been questioned. The Government consulted on various options:
- abolishing the legal relationship of civil partnership and converting existing civil partnerships into marriages
- stopping new civil partnerships being registered but retaining existing ones
- opening up civil partnership to opposite sex couples
There was no united call for reform in responses to the consultation. Some felt that it was too soon to change civil partnerships, before the impact of extending marriage to same sex couples could be assessed.
The previous Government decided not to do anything for now, but there could be pressure to look at the issue again in this Parliament.
At present a person seeking a divorce must cite one of five reasons why their marriage has permanently broken down: adultery; unreasonable behaviour; desertion for two or more years; two years' separation with consent; or five years' separation without consent. "Unreasonable behaviour" is the most commonly cited reason.
As long ago as 1996, the Conservative Government passed legislation which was intended to revolutionise the divorce process and to introduce "no fault divorces" (Family Law Act 1996, Part II).
These provisions were never brought into force and have now been repealed. Calls continue to be made for a new approach to divorce that is simpler and less adversarial.
For example, in April 2014, Sir James Munby, the President of the High Court's Family Division, argued that it may now be time to remove all concept of fault as a basis of divorce and to introduce a more administrative process (in appropriate cases).
Division of property on divorce or dissolution of a civil partnership can provoke acrimonious and costly disagreement. Even where this is not the case, there can still be uncertainty about how property should be divided.
Some couples try to decide in advance how they would wish their property and income to be divided in the event of divorce or dissolution, and enter into a pre-nuptial or post-nuptial agreement.
Such agreements are not automatically enforceable in courts in England and Wales, even after a landmark Supreme Court ruling in 2010 that in certain circumstances, some pre-nups should now have effect in the absence of anything which would make this unfair.
In 2014, the Law Commission recommended that couples should be able to enter into a legally binding agreement dealing with the financial consequences of divorce or dissolution.
These agreements would have to meet certain requirements, and couples would not be able to contract out of meeting the financial needs of each other and of any children.
A new Government could implement the recommendation by introducing legislation to provide for enforceable pre-nups.