Cohabitation vs. marriage
Cohabitation or marriage – and does it matter much these days anyway. Does a ‘certificate’ provide a secure safety net or prove to be a legal hindrance if the relationship ends? Is a cohabitation contract just as good and is it enforceable? What are the legal differences?
Today over 50% of cohabiting couples believe they are a ‘common-law wife or husband’ and that this confers similar rights to a married couple. This is not the case.
As long ago as 1753 the first Marriage Act was introduced to provide that all marriages in England had to be conducted in a church and recorded in a marriage register. This was primarily to ban clandestine (unlawful) marriages, but which also ended the common law marriage.
Equally, simply entering into a religious marriage alone will not be valid in England; you also need a civil marriage.
Many couples will choose not to marry, but they need to be more aware of their legal status and think more carefully about how to protect their position.
Some of the key differences are:
- Assets and property acquired by partners will remain the property of the named owner; property acquired during a marriage is property of the marriage
- An unmarried mother has sole responsibility for any children; an unmarried father would have to take steps to acquire the parental responsibility that is automatic for a married father
- If one partner dies without making a will, there is no automatic right to inherit; there is some provision if you are a spouse
- A separating partner has no obligation to financially support the other; the married spouse has a legal duty to do so
- There is no capital gains or inheritance tax exemption for transfers between unmarried cohabitants; between spouses such transfers are exempt
There are many more differences that relate to occupation of the home, pensions and possessions; rules relating to benefits, child support and immigration are the same in each case.
When a marriage comes to an end the division of assets is governed by matrimonial law. In cohabitation, unless the parties have entered into a cohabitation contract, there is no comparable legal mechanism that governs the end of the relationship; it will be for the parties to work things out.
Cohabitation is an important lifestyle choice, but get advice and enter into it with the benefit of hindsight.