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Marriage vs Cohabitation: What are your rights?

Published 2 October 2020

Many couples are opting for cohabitation over marriage in recent times. There can be a few different reasons for this; some people regard marriage as being ‘old-fashioned’ or restricting, while others don’t see the rationale or need to formalise their relationship. Another reason couples may not marry is that they do not want the prospect of divorce to leave them trapped in an unhappy relationship.

In this blog, our Family Law solicitors will explain the concept of cohabitation, compare the rights of those in cohabited relationships with those who are married, and look at how cohabitation can affect divorce.

What is cohabitation?

Cohabitation usually refers to couples who live together without formally registering as a married couple. The Office for National Statictics reports that 61% of the population aged 16 and over in England & Wales were living in a couple in 2019.

Many marriages these days are preceded by cohabitation, but cohabitation has become a status in its own right and with its own set of legal implications. The ONS further reports that 50% of the population aged 16 and over in England & Wales were married in 2019.

Legal position of Cohabiting couples vs Married couples

Cohabitation:

Cohabiting couples have far fewer rights and responsibilities to their partner than those in married couples. It can be a good idea to agree on a cohabitation contract which sets out the terms of the living arrangements between parties. This area of law is still a bit of a grey area for people with agreements made acting as a guide rather than being legally enforceable.

It is advisable to speak to an experienced Family Law solicitor if you are looking to come up with such an agreement as they will be able to outline your legal position and offer advice on matters such as the joint purchase of a house or setting up of joint bank accounts.

Also, if you are in a cohabitant relationship it is in your best interests to make a Will to ensure your partner is cared for in the event of your passing. Find out more info on Wills here.

Marriage:

Married couples have a lot more rights than those in cohabited relationships. As mentioned above those in cohabited relationships may not automatically inherit anything unless a Will is made whereas those in a marriage will as their spouse is their next of kin.

In the case of banking, joint bank accounts can be set up in a marriage where both partners have access to money despite who has deposited it. In relation to debts you will be responsible for debts that are registered jointly.

In a marriage you will generally have more rights in relation to housing, tax, pensions, inheritance and financial support. For more information on marriage and cohabitation contact a member of our Family Law team.

The effect of cohabitation on divorce

It is common for couples to cohabit before marriage and this can have an effect on the outcome of the divorce process. The division of assets can consider assets acquired during the period of cohabitation in the divorce settlement. Cohabitation after separation is also considered with courts looking at time spent together or if the partner is involved in childcare/costs etc.

Overall, you will have more legal rights in a marriage than in a cohabitation but along with that comes more responsibility to your partner. It is up to you to decide which of these is more suitable to your relationship but either way it is important to know your rights.

If you would like to discuss any aspects of cohabitation or divorce, please contact the Family Law team at MKB Law.

This article is for general guidance only and should not be regarded as a substitute for professional legal advice.

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