UK divorce law review criticised for failing to consider cohabiting couples

The recent decision of the UK government to review the law that determines how financial assets are split after divorce has been criticised by a senior partner at a prominent law firm. Henry Hood raised concerns that the review fails to consider the most pressing issues facing couples ending their relationship, particularly the rights of cohabiting couples.

Mr Hood of Hunters Law LLP said the time the government has set aside to review the 1973 Matrimonial Act would be better spent reviewing the way marital status impacts the right to claim financial assets. According to him, the issue most in need of remedy is the fact that cohabiting couples, unlike those who are married or in a civil partnership, cannot claim a share of their ex-partner's wealth.

He is particularly concerned about partners who "sacrificed" themselves financially by primarily taking care of their children.

The solicitor stated that the current law does not reflect the large number of couples in the UK who are choosing to live together without formalising their relationship. "Surely what happens in the event of relationship breakdown should reflect the views of society as they change," he said.

"The inability of the law to address this is a glaring hole in the available legislation," Hood added.

The government's decision to review the law is based on making the system for couples who are married or in a civil partnership more consistent.

It follows criticism the current system offers no clear guidance on how funds should be separated for divorcing couples. Whilst often their assets are split evenly, it happens at a judge's discretion.

We have seen the various ways many high-profile divorces are settled, many of which are broadcasted heavily, revealing the lack of consistency in divorce settlements.

Jo Edwards, chair of the family law reform group for Resolution, which represents family justice professionals, said: "There are undoubtedly areas which need greater clarity such as spousal maintenance payments — whether any should be paid and if so, how much and for how long."

Yet any attempt to find a more formulaic approach to how money is divided could lead to further problems.

Hood said that any changes to the arrangements could lead to an "unjust" outcome.

"Every case is different and an algorithm cannot deal with every eventuality. Our system allows a bespoke solution to every case," he said. A standardized approach to separating funds would not consider the particular circumstances, such as where one party has shouldered more of the domestic burden.

"Whilst a formulaic approach to determining financial provision on divorce would be cheaper for clients, one can query whether it would be fairer," Hood added.

The total number of cohabiting couples across the UK has increased from around 1.5 million in 1996 to around 3.6 million in 2021, an increase of 144 per cent.

The rights of separating partners differ within the UK. In Scotland, cohabitants have the right to claim a capital sum from their ex-partner in a similar way that couples who are married or in a civil partnership do.

Figures show that 112,182 people got divorced in 2020, the most recent times figures were collected. No comparative figures for separating cohabitants exist.