It may not seem it when we practitioners work with families on a case-by-case basis, but we are in the process of a transformative change in family life.
Four key trends have been driving this change over the last forty years or so:
- Fewer couples are getting married. Taking round numbers, 35 years ago in 1989, around 340,000 marriages were conducted out of a UK population of 57 million. In 2019, there were 220,000 marriages conducted out of a population of 67 million. This equates to a 33% decrease in the number of marriages, against the backdrop of a 15% increase in population.
The result of this is that children are far more likely to be born into unmarried households. In fact, 2021 was the first year on record that more babies were born to cohabiting parents than to married parents.
- Increase in the international movement of people. The size of the foreign-born population has increased from around 2.5 million in 1961 to around 10m in 2020. Particularly amongst the wealthy, the rise of London as a global financial centre coupled with the draw of an English private education has attracted people from all over the world. The cases we deal with are more likely to have an international element.
- Record levels of female employment. Employment rates for women are at record highs of 72%. According to a recent Parliamentary research paper, only a relatively small number of women – 1.38 million – are “economically inactive” because of their childcare commitments. To put that in context, it is about the same as female students (1.3 million) and fewer than the long-term sick (1.5 million).
- Increase in the age of those getting married and having children
In 1975, the average age of people getting married was around 21, and then having children at around 23. Those figures have now risen to around 29 years old.
A modern relationship is therefore more likely to be between cohabiting parties, with children being born outside of a marriage, and with two working parents. There may often be an international element to the family.
Is it too early to be writing marriage off?
It’s true that many people are still choosing to get married – in particular, those from more affluent families, and those from religious communities. But even marriage has developed a modern quality to it. Most obviously, same-sex marriage was passed by David Cameron’s coalition government and so a marriage is not necessarily between a husband and wife.
In terms of finances:
- Post Radmacher v Granatino, prenuptial agreements are gathering momentum;
- Spouses are likely to be older at the date of marriage and will therefore have developed independent careers, assets, and earning capacities prior to entering marriage;
- The Court’s attitude to maintenance is changing, meaning fewer joint lives orders, and the clear judicial authority preventing spouses from sharing a future earning capacity, per Waggott v Waggott.
- The rise of Part III to meet the demand from international families (although perhaps the recent result in Potanin reduces the scope for Part III by strengthening the test for permission and reducing the bar for set aside).
So whilst we shouldn’t exaggerate reports of the death of marriage, it is true that marriage is changing. These changes can be linked to the big trends – the rise in female employment, for example, plays a large role in the more limited size and term of spousal maintenance payments upon divorce. Prenuptial agreements make more sense to more people if you are getting married in your thirties rather than in your early twenties.
Is English family law keeping pace with this societal shift?
Practitioners can see some of the most interesting Schedule 1 (of the Children Act, relating to claims made by unmarried parents of children) developments in the recent case of Collardeau Fuchs. Mr Justice Mostyn draws together a number of propositions to establish what he calls a Household Expenditure Child Support Award (“HECSA“). This, he says, can cover a child maintenance award – either in relation to Schedule 1 cases (where it will be the “centrepiece” of the litigation) – or in financial litigation following a marriage where the child maintenance is the main event. For example, this might be an application where a prenuptial agreement deals with capital and spousal maintenance already, or where an applicant has an earning capacity or assets such that she cannot make a spousal maintenance claim.
The HECSA is described as taking a number of factors into account, but the feeling is that it gives judicial approval to a more muscular child maintenance regime. The level of a HECSA should be judged by reference to the standard of living enjoyed by the respondent and to that enjoyed by the family prior to the breakdown of the relationship – not to replicate, but for it to bear some resemblance. The HECSA should be set at such a level that the applicant is “not burdened by unnecessary financial anxiety” and this extends to the provision of a car, and designer clothing for the parent. Ultimately, the principle is that it is permissible to support the child by supporting the mother. Anecdotally, this case is being used to push the envelope of child maintenance cases, and practitioners expect this line of judicial authority to expand further to meet the growing number of Schedule 1 cases.
Savvy cohabitees are using a combination of wills, property ownership, declarations of trust, and cohabitation agreements to secure their financial future. None of this is strictly speaking family law, and so query whether proper law reform will be enacted. Speaking at the Labour Party Conference on 10th October 2023, Emily Thornberry identified reform of the law around cohabitation as an injustice that must be addressed, stating, ” For too long, women in co-habiting couples have been left with no rights when those relationships come to an end. If there is no joint property or shared parental dues, a man can leave his partner with nothing, especially if he has the means to take it to court and – thanks to the Tories – she does not. It is time we reviewed this issue in England and Wales, just as it has been in New Zealand, Scotland and Ireland. No woman should be forced to get married or stay in an unhappy relationship, just to avoid ending up on the street.” In the Labour Party Manifesto 2024, they stated, “we will strengthen the rights and protections available to women in cohabiting couples.” As yet, there is no detail as to what kind of scheme might be put in place and – crucially – currently no timeline for reform.
What are particular challenges to the breakdown of a modern relationship?
In my personal experience, some of the most difficult cases I have dealt with have involved unmarried parents with teenage children, where one party (often the mother) has sacrificed their career to look after the children. The mother is then left with a Schedule 1 claim for a short period of child maintenance and possibly housing for a limited term. There may be a TOLATA claim, but recognising and compensating for a career sacrifice was never the purpose of TOLATA, and claims are likely to be uncertain and costly. The mother is left with whatever property she has in her own name (or joint names), and then she has to restart a career and / or rely on the father’s largesse or even the generosity of her children.
Compare that mother with a mother who may have had the briefest of liaisons with a wealthy man, and then through Schedule 1 is able to secure child maintenance, stable housing, and school fees for at least 18 years. That support will enable her to maximise her earning capacity, and emerge at the end of her child maintenance term in a strong position.
When you compare the two mothers, you can see how brutal the Schedule 1 regime can be from a client’s perspective. Which of these hypothetical mothers has contributed or sacrificed more for the welfare of a family? Undoubtedly the mother of the teenage children. Which mother receives the better deal from English family law? Undoubtedly the “brief liaison” mother. I appreciate that the family lawyer’s response to that perceived unfairness is that child maintenance is designed to meet the needs of the child, and a new-born baby has greater needs, for a longer period of time, than teenage children – but this important nuance is often missed by clients.
This perceived unfairness also seems to be highly damaging to a post-separation family dynamic, and I suspect that contested children proceedings are more likely to take place, and more likely to be intractable, where modern relationships break down in this way. It would be unfortunate if Schedule 1 awards, where per Mostyn “the welfare of the child must be a constant influence“, actually create difficult children disputes because of the perceived unfairness of the financial outcome.
The changing nature of marriage and relationships has created tensions with some key provisions of English family law. It remains to be seen whether the law will be reformed wholesale by Parliament or whether change will be introduced incrementally through the judgments of the senior judiciary.
For further information, please contact Luke Scarratt by email or your usual contact in the Family Department or, alternatively, telephone on 020 7465 4390.
To learn more about Divorce and Separation, you can download a free copy of our Essential Guide to Divorce and Family Law here.
To learn more about Modern Family Law, visit our dedicated webpage and download a free copy of our Essential Guide to Modern Family here.
