Living together - How is it different to marriage?

27 November 2017

As a family lawyer we often have conversations with people about the difference between cohabitation and marriage. Often people will say that they can see no point in getting married as having children is a greater commitment. Cohabiting couples are the fastest growing family type in UK, with more than 6 million people living in these sort of relationships, representing 17% of all families

cohabitingWe always find these conversations very difficult, as it is understandable that that having children can feel a much greater commitment than a civil or religious ceremony that has taken place.

However, the law does not support this social or moral thinking. In fact it does the opposite. The rights that you have as the parent of a child together rather than as a spouse are significantly different.  For married couples there are rights to sharing of assets on separation, sharing of pension, the ability to seek and agree maintenance both for children and for a spouse, the right to claim pension shares and make claims on the estate of the other party on their death.

As a cohabitee (somebody that lives with another party - with or without children) these claims do not exist by right.  The only claims that are available for property are based upon contributions that have been made the legal title and trust law. There is no right due to the relationship for any financial claim although in some situations, through litigation, it may be possible to make financial claims in certain circumstances.

Often people presume that there are financial rights by virtue of the fact the relationship is a long one with children. We are often told that people are “common law husband and wife”. Unfortunately there is no such legal definition and regardless of the length of the relationship and how many children you have this does not spark any automatic entitlement to sharing of assets or income. It is possible to negotiate however the only claims that can be made if there are not children are for joint assets (or a possible claim for a property held in one person’s name if certain evidential points are proven). If there are children there is a right to seek child maintenance (but not any spousal maintenance) and a lump sum under Schedule 1 of the Children Act for capital that the child may need.

This often feels very unfair, particularly when in this modern day and age marriage is less popular and people enter into long term relationships presuming they are going to be treated the same as a married couple. It is common for me to hear that a mother has decided to become the full-time carer of her child whilst the father works, contributes to his pension and the property is held in his name due to his larger mortgage capacity. However on a later separation this can have very damaging consequences on the ability for both parents to have a similar standard of living following a separation.

There are ways to deal with property that is not owned in joint names if you are not married, including cohabitation agreements and declarations of trust.

It is also very important that you ensure your will is up to date and that the nominations under pensions and life insurance are correct and reviewed regularly to make sure that claims on the death of the other are going to the intended.

If you are concerned about the impact this issue has on you or your family please do not hesitate to contact one of the family team here at Freeths by calling 01865 781 000 or by email at rachael.oakes@freeths.co.uk.

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