Living Together vs. Tying the Knot: Understanding Cohabitation and Marriage

Life is full of big decisions, and choosing how to structure your relationship is no exception. Many couples decide to live together before or instead of getting married. But what are the legal implications of each choice? This guide will explore the key differences between cohabitation and marriage in England and Wales.

Cohabitation: Sharing a life, not legal rights.

Cohabiting simply means living together in a romantic relationship without being married or in a civil partnership. While it's a common arrangement, it's important to understand that cohabiting couples don't have the same legal rights as married couples. Here's what that means:

• No "common law marriage": There's a misconception that cohabiting for a certain period grants the same rights as marriage. This is not true. Cohabitation offers no automatic legal protections in England and Wales.
• Separate finances: Generally, what you owned before cohabiting remains yours. Possessions purchased jointly are to be shared. There's no automatic financial support between partners.

Challenges of Separation:

• Dividing property: If you separate, things can get complicated. Unless you have a Living Together Agreement or a Trust Deed in respect of any jointly owned property, dividing assets can be messy and require legal intervention.
• Limited rights for children: Unmarried fathers don't automatically have parental responsibility for children born during the relationship. To have parental responsibility a father needs to be named on the child's birth certificate, marry the mother, enter a parental responsibility agreement with the mother, or get a court order.

Marriage: A legal commitment with benefits.

Marriage offers a formal framework with significant legal and financial advantages:

• Shared finances: Upon divorce, the court can consider all assets, both acquired before and during the marriage. This can lead to a fairer financial split.
• Inheritance rights: Spouses automatically inherit from each other if one dies without a Will as they are each other's next of kin. Cohabiting partners do not and in the event of death it is likely a cohabitee's next of kin is their parent.
• Parental responsibility: Both married parents automatically have parental responsibility for their children.
• Support: Spouses have a legal duty to support each other financially if needed.

Benefits of Cohabitation:

• Easier separation: Dividing assets is often simpler when finances and assets have all been kept separate.
• No formalities: There's no legal process to end a cohabiting relationship.
• Financial independence: You maintain control over your own income and assets, pension etc.

Benefits of Marriage:

• Stronger legal protections: Marriage offers greater security and clarity regarding finances, property, and children.
• Inheritance benefits: Spouses automatically inherit from each other.
• Financial support: Spouses have a legal obligation to support each other financially.
• Tax advantages: Married couples enjoy certain inheritance tax exemptions and income tax benefits.

Important Considerations Before Cohabiting:

• Tenancy agreement: If you're renting together, ensure both names are on the tenancy agreement to avoid future complications.
• Property ownership: If you're buying a property together, consider a declaration of trust outlining ownership shares. It is crucial that you both receive legal advice about how you are going to hold the property together at the land registry before completing any purchase.
• Wills: Having Wills ensures your assets go to who you choose, especially important for cohabiting couples who are not each other’s next of kin.

Cohabitation Agreements and Declarations of Trust:

These documents can help cohabiting couples avoid disputes:

• Cohabitation agreements: Formalise financial arrangements, responsibilities, and ownership of assets during and after the relationship.
• Declarations of trust: Specify ownership shares in jointly owned property registered at the HM Land Registry.

Marriage vs. Cohabitation When Starting a Family:

• Parental responsibility: Married fathers automatically have parental responsibility, while unmarried fathers need to take extra steps to acquire it.
• Child arrangements: Regardless of marital status, parents can make informal agreements or apply for court orders regarding child arrangements.

This guide provides a general overview, and every situation is unique. Consulting a family law solicitor is crucial for personalised advice tailored to your circumstances. They can help you understand your rights and make informed decisions about your future, together.

If you would like to know where you stand before you move in or marry your partner, please contact us on 0333 920 5911 and talk to one of our team who can help you navigate the legal issues you may be facing.

Our family law experts can provide advice on all aspects of divorce, separation and co-parenting. For further information about how we might be able to help you, please click here: https://www.familylawconsultants.co.uk and use the call back request form on the right hand side of this page to request a call from us.

Written by Joanne Bennett