Marriage versus cohabitation – the legal status

According to figures from the National Office of Statistics, divorce rates have fallen to their lowest level for 40 years. There has been a significant rise in the proportion of couples marrying after a period of cohabitation, with the data pointing to these marriages surviving the so-called “seven year itch”.

It seems that many couples are opting to convert their long-term relationships into marriages because of the greater security it represents in the absence of legal rights for cohabitees.

Many people believe that there is a “common-law spouse” status in UK law, but this isn’t the case. There are a number of legal rights that marriage and civil partnerships bestow which don’t apply to those who cohabit.

Financial matters

When it comes to taxation, transfers of assets between husbands and wives and those in civil partnerships are exempt from Capital Gains Tax and Inheritance Tax. This doesn’t apply to cohabiting couples. An unmarried cohabitee will generally have no automatic right to inherit a pension on the death of their partner.

If one partner in a marriage or civil partnership dies without making a Will, the law of intestate succession provides that part of the deceased’s estate will go to the other partner. If a cohabiting partner dies without a Will the surviving partner has no automatic right to any of the deceased’s assets unless the couple owned property jointly, although in certain circumstances a claim can be made for part of the assets.

Owning property

If a cohabiting couple split up, unless they have a cohabitation agreement in place, each party leaves with what they owned at the outset. So, if a couple lived in a house owned by one of them, their partner will have no claim on it, even if they have paid bills, or contributed in other ways.

Ending the relationship

On divorce, the division of marital assets is governed by matrimonial law. If the parties have signed a prenuptial agreement setting out how their assets should be split on divorce or separation, then whilst such agreements are not enforceable, they may be taken into account by the court.

By contrast, unless a cohabitation agreement has been entered into, there is no legal framework that governs the dissolution of the relationship. It will be left to the parties involved to agree how best to work things out.

Legal protection for cohabitees

Couples can protect themselves by writing a “cohabitation agreement” or a “declaration of trust”. Both these contracts are legally binding and set out exactly what each party would receive on separation and can include any child payments that will be made. It’s important that they each have valid Wills in place too.

Safeguarding your rights

With more and more couples choosing to cohabit for longer, often postponing marriage or civil partnership until later in life, it makes sense for cohabiting partners to take legal advice to ensure their interests are fully protected.

With so much at stake, it makes sense to seek the advice and assistance of an experienced and specialist professional whether you are buying a house with your partner or your relationship has already come to an end. Elizabeth Miles has over 25 years of experience helping people who find themselves in this type of situation when a relationship has broken down and she sat as a Deputy District Judge for 11 years deciding these types of cases.

For a confidential chat please contact Elizabeth Miles by telephone on 01628 631051 or by email to family@colemans.huntersserver.co.uk

Categorised in: Family Law, Latest news

This post was written by Colemans Solicitors LLP