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Declining divorce rates reveal the urgent need for legal reform

The downturn in divorce rates do not indicate a positive shift in attitudes to marriage – so much as the urgent need for reform of divorce law, writes Joanne Raisbeck

The Office for National Statistics has released 2015 data for divorce in England and Wales. Figures show divorce rates continuing to decline across all age groups; there were 101,055 divorces of opposite sex couples in 2015, a decrease of 9.1 per cent on 2014 figures and a decline of 34 per cent from the most recent peak in 2003. There were also 22 divorces of same sex couples, with 2015 being the first recorded year of same sex divorces following the introduction of same sex marriage in 2014.

Recent years have demonstrated a much greater social shift towards couples living together unmarried and indeed cohabiting couples is the fastest growing type of household in the UK. The fall in the divorce rate is largely consistent with a decline in marriage and co-habiting couples that separate are not included in the statistics.

The problem here is that at present the law is failing those who choose to cohabit rather than marry.  Many couples simply do not appreciate just how vulnerable and exposed they are in cohabitation should their relationship breakdown. In particular, there is no 'common law spouse' protection and cohabiting couples in most circumstances do not have any legal entitlement in their own right to share in the assets, pension or income of their partner in the event that their relationship ends. Conversely in the case of a married couple, claims for capital and pension are claims of entitlement by virtue of the marriage and where there is a 'need' for on-going financial support via the sharing of income resources, a claim for spousal maintenance can be made.

As increasingly people decide to live together before they enter marriage, statistics are showing some evidence of a decrease in the proportion of marriages that end in divorce.  What is also clear is that couples are remaining married for a longer period, such that more married couples are now surviving the so called 'seven year itch' with the average marriage now lasting 11.9 years.  The rhetorical question must be: Is this because married couples are living in complete matrimonial bliss, or are they simply living separate and apart without getting a divorce?

Married couples who separate but do not divorce are also at some risk. Long periods of separation can often result in significant changes taking place in a couples’ capital, pension and income position, which can cause real complications at the time of a later divorce: the Family Court will look at the value of assets at the time of the divorce and not at the point of separation.

Unsurprisingly, the most recent statistics also continue to show that unreasonable behaviour is the most common ground for divorce with 52 per cent of wives and 37 per cent of husbands petitioning on this ground. Such an approach can often increase hostility and unnecessarily raise the temperature in divorce proceedings. The recent decision in the case of Owens v Owens, in which the wife was refused a divorce based on her husband’s unreasonable behaviour, despite the court accepting that the marriage had broken down, is testament to why a change in the law allowing for no-fault divorce is long overdue. No-fault divorce is widely supported and couples should not be forced to remain in a marriage against their will. A no-fault approach would go a considerable way to helping divorcing couples reduce conflict and focus on what really matters, particularly where there are children of the relationship whose best interests must be paramount.

Urgent reform of the legal status of the millions of cohabiting couples in the UK is needed as is reform to divorce law to allow for no-fault divorce. The government cannot continue to ignore these pressing issues, but just when will we see the reform that is so very much needed?

Joanne Raisbeck is the head of family law at Hill Dickinson