There are distinct differences between cohabitation and marriage when it comes to the law. We take a look at the rights that attach to each.

Many couples choose to live together, either as an alternative to marriage or civil partnership, or before deciding to get married or enter into a civil partnership. Marriage and civil partnership offer far more legal rights than cohabitation in the event of a separation.

Cohabitation

If you decide to live together, you will not have any rights over each other’s assets. Generally speaking, ownership will remain with whoever is the registered or legal owner.

There is a potential exception in the case of property. If you live with someone and your name is not on the title deeds of the shared home but you have made financial contributions, such as paying the mortgage, paying bills so that the other person can pay the mortgage or paying for substantial work to the property, and this was done on the understanding that you would have a share in the property, you may be able to make a claim.

The Trusts of Land and Appointment of Trustees Act 1996, commonly referred to as TOLATA, allows the court to make an order in respect of property where a couple intended that the claimant have a share but they are not named as a legal owner.

To avoid the need for a TOLATA claim, you can put a deed of trust in place, setting out how a property is shared. Alternatively, you can transfer the property into joint names.

Couples who live together do not have any right to claim maintenance, should they separate. To provide a level of certainty for the future, you can enter into a cohabitation agreement. This can deal with issues such as:

  • How assets will be shared, should you separate
  • What will happen to shared property
  • How outgoings and debts will be dealt with
  • Whether one party will be supported financially by the other, for example, if they give up their career to care for children

Marriage and civil partnership

If you marry or enter into a civil partnership and subsequently divorce or dissolve your civil partnership, your finances will be dealt with jointly. The starting point for the courts is a 50:50 split, although a range of points will be taken into consideration.

For example, if the marriage was very short and one party inherited a large sum, then that might not be shared. For a longer marriage, the courts will tend to put all assets in the matrimonial pot to be split between you.

If one party is in a weaker financial position than the other, they might receive a larger sum to compensate. For example, they may have given up their job to raise children and look after the home. This work is considered to be equal to work outside of the home.

Matters the court will look at in making a financial order include:

  • Each of your financial needs and obligations, including in the foreseeable future
  • Each of your financial resources, including income, earning capacity and assets, in the present and in the foreseeable future
  • Your ages and the length of the marriage
  • The standard of living you had during the marriage
  • Any physical or mental disabilities that either of you has
  • Contributions each of you have made, including looking after children and the home
  • The value of any benefit which you would lose because of the ending of the marriage, for example, pension entitlement
  • Conduct, where it would be inequitable for the court to disregard this

Issues relating to children

Issues relating to children are dealt with in a similar way whether a couple is married or not. The person who does not have the children living with them will usually pay maintenance to the other parent.

One potential difference is that an unmarried father who is not named on the birth certificate will not automatically have parental responsibility. This is the rights, responsibilities and obligations in respect of the child and their property.

The child’s birth mother may be prepared to agree that he can have parental responsibility. Alternatively, he may be able to make an application to the court for it.

Child arrangements can be put in place and the courts prefer that children have a meaningful relationship and contact with each of their parents.

 

If you would like to speak to one of our expert estate planners, ring us on 01634 353 658 or email us at rob@pembrokewillwriters.com