Legal Rights of Cohabitation vs Marriage
Since 1996, there has been a 144% increase in couples choosing cohabitation instead of marriage. Now, cohabitating couples make up over 3.6 million families adopting the modern family type.
With rising living costs, many couples are opting to move in before marriage to save on paying separate rent or mortgages. Additionally, with the average cost of a wedding currently at £18,400, more young couples are opting to save their money till later in life.
There is a big legal difference between married couples and couples who cohabit. Those who choose to cohabit long-term do not end up with the same legal rights as couples who marry.
However, cohabitating does have benefits such as avoiding the high cost of a wedding and the risk of further expenses if the couple divorces.
With over 50% of marriages ending in divorce, marriage is becoming a financial risk some couples may not think worth taking.
This article will look at the pros and cons of cohabitation vs marriage and the legal rights that come with each.
What is Cohabitation?
Marriage is the legally and formally recognised union of two partners. Alternatively, cohabitation refers to a couple that lives together but is not married or in a civil partnership.
When separating, cohabitees do not have the same legal rights and protections that married couples do.
Cohabitating couples ‘cohabitees’ are becoming increasingly common. Many couples now opt to live together before considering marriage, especially to save money on rent or mortgages. Cohabitation vs marriage is becoming an increasingly debated topic, with a number of organisations campaigning for a change in the law in England and Wales.
It is advised that anyone considering cohabiting with their partner considered the legal situation they are entering before committing.
Does Living with Your Partner Give You the Same Rights as a Married Couple?
Cohabitating couples are not granted the same rights as married couples by common law. This means they are not able to make financial claims for themselves against their partner in the event of a relationship breakdown.
As it stands, the rights of cohabitating couples are very restricted and are more limited when it comes to financial claims, including property ownership. These limitations still stand even if you and your cohabitee have a child together, or you have lived together for many years.
Legal Differences: Cohabitation Vs Marriage
When it comes to cohabitation vs marriage, there are several different rights you will want to consider if you choose to cohabit. When deciding cohabitation vs marriage, here are some legal differences couples should be considering:
Rules of Intestacy
If one cohabitee dies, their property will pass over to whoever is named on their will. Alternatively, the property will go over to a certain family member if they die without a will in place. This is called the Rules of Intestacy.
The surviving partner can make a claim if they can demonstrate that they were living effectively as husband/ wife/ civil partner for the two years preceding death of if they can show they were being maintained by the deceased immediately prior to death.
In comparison, a married partner under the Rules of Intestacy will inherit most of the Estate (all the estate if the couple has no children.) Additionally, if the married partner makes a claim, they are entitled to a larger amount of financial provision.
Capital or Maintenance Claims
An unmarried partner stays at home to look after the children, and cannot make any claims for capital, or maintenance, (for themselves.) The unmarried partner is only eligible to make a capital or maintenance claim on behalf of the children.
Typically, property settlements are temporary, extending only until the children complete their education, after which the ownership returns to the other parent. In the case of unmarried partners, their ability to make a claim on a property is limited to establishing a present beneficial interest according to trust laws. This is generally determined by their ability to demonstrate a contribution towards the property’s purchase.
Pension Sharing Order
An unmarried partner is not able to apply for a pension sharing order for either themselves or their children.
Bank Account Access
In the unfortunate event of a partner’s death, cohabiting partners do not have the ability to access their deceased partner’s bank account, unlike married couples who may be granted permission to withdraw the remaining balance.
Cohabitation can be terminated quickly and informally by physically separating without the involvement of the court. There is no requirement for legal proceedings. However, married couples must engage the court to formally dissolve their marriage since divorce is a legal process.
Common Law Duty
After separating, cohabiting couples are not legally obligated to provide financial support to each other. On the other hand, married partners have a legal duty to do so under common law. While there is no automatic entitlement to maintenance in the event of divorce, individuals going through a divorce can seek maintenance by applying to court.
Matrimonial Home Rights
If you are the unmarried partner of a tenant, you do not possess the right to continue residing in the accommodation if asked to vacate. Conversely, each married partner has the right to remain in the “matrimonial home” until the divorce process is finalized. In the case where one spouse owns the property, the other spouse can register a Matrimonial Homes Notice on the title at the Land Register.
Cons of Cohabitation over Marriage
Cohabitation can be particularly risky depending on your situation. For an unmarried partner who has stayed at home to look after the kids while the other partner focuses on their career, the law can act against the stay-at-home parent. This is because, in the event of a separation, the stay-at-home parent could receive nothing for themselves.
Alternatively, the law looks fairer on married individuals who stay at home and are divorcing. The law generally awards the homemaker a fair share of the assets and income after divorce.
In the Event of the Death of Partner
Where a partner dies, the law allows a married partner to inherit some of the estate and have a right to claim against the estate if a reasonable provision has not been made in the will.
In the event of death, a cohabiting partner can only make a claim against the estate if they can demonstrate financial dependence just prior to the death or if they were living together in a manner akin to a married couple for a minimum of 2 years before the death. However, even if their claim is successful, the provisions granted by the court are often considerably less generous compared to those that would be awarded to a married couple.
In the event of a divorce, a married couple’s assets are combined into a marital pool and divided between them. This safeguards individuals who may have depended on their spouse’s financial support. On the other hand, cohabiting couples do not possess the same entitlement to each other’s property. As a result, each party can choose to separate with what they consider their own. While this arrangement provides added security for individuals with greater assets in the relationship, it can leave those who rely on their partner’s income in a challenging financial position.
In England and Wales, the legal framework grants married couples who separate the right to claim maintenance (income). Additionally, claims can be made for a portion of shared assets such as pensions, properties, savings, and investments. The court holds a broad discretion to realign income and assets to achieve a fair outcome. When determining a just division, the court considers various factors, although, in practice, this is typically resolved through negotiations between the parties’ lawyers or through mediation, often avoiding the need to go through formal court proceedings.
If you are not married but are living with your partner, these rights do not apply to you. If you and your partner separate without being married, the claims you can make are limited to:
- Applications can be made for the benefit of children, seeking maintenance, capital, or housing provision.
- Claims can be pursued to establish a beneficial interest in a property owned by your partner. This is provided you have a trust arrangement in place.
Considerations for Cohabitating Couples Planning on Starting a Family
Unmarried couples who are considering having a child should first be aware of the legal implications. Unlike cohabitation, having a child requires long-term legal responsibilities. For example, parents generally have an obligation to provide support to their children until they reach the age of 16. This increases to 20 if they are in full-time education up to A-level or equivalent. Therefore, if cohabiting parents separate, one parent cannot walk away and leave the other parent solely responsible for the child. The non-custodial parent will have an obligation to pay child maintenance. This is similar to the obligations of divorcing spouses.
Protect Yourself with a Cohabitation Agreement
Unmarried couples who opt not to marry may desire to gain certain legal advantages akin to marriage. This can be achieved by entering into a cohabitation agreement or drafting a Will that benefits their partner.
A Cohabitation Agreement is a written document outlining the division of assets, finances, and family matters in the event of separation. It covers various aspects such as:
The purpose of this agreement is to safeguard both parties from potential legal issues that may arise following a breakup.
However, the enforceability of such agreements in practice is a matter of debate.
It’s important to note that pension provisions cannot be included in such agreements. This is because pension share orders can only be issued by courts during the divorce process.
To provide financial security for the financially vulnerable cohabiting partner, it is crucial to ensure that any property is jointly registered in both names (registered at the Land Registry.) Alternatively, partners should establish a formal Deed of Trust. This acknowledges and safeguards the beneficial interest through the registration of a Notice or Restriction at the Land Registry.
Depending on the nature of your relationship, consider each creating a will that provides for the other person. However, it’s important to be aware that individuals can change their will at any time. Additionally, in the event of the cohabiting partner’s death, it’s important to have an adequate life insurance policy in place.
For more information on cohabitation agreements and your rights, please get in contact with our team of family law solicitors.
All advice is correct at time of publication.