Many couples live together, share bills, buy homes, raise children and build lives as a family. Some are married or in a civil partnership. Others are not. The legal difference between those two situations is very important, especially if the relationship ends.
Divorce law applies when a married couple separates and legally ends their marriage. Cohabitation law applies when an unmarried couple who have been living together separate. Although the relationships may look similar in everyday life, the legal rights are very different.
What divorce law does
When married couples divorce, the court has wide powers to make financial orders. The court can look at the whole financial picture, including the family home, savings, pensions, income, debts and business interests. The aim is to reach a fair outcome, taking into account the needs of each person and, most importantly, any children.
This does not mean everything is always divided equally. The result depends on the facts. The court may consider the length of the marriage, each person’s income and earning ability, housing needs, childcare responsibilities, age, health and standard of living during the marriage.
Divorce law can also provide ongoing financial support in some cases. For example, one spouse may have to pay maintenance to the other for a period of time. Pension sharing orders may also be made, which can be especially important where one spouse has built up a larger pension while the other has cared for children or worked part-time.
What cohabitation law does
Cohabitation law is much more limited. A common misunderstanding is that couples who live together for a long time become “common law spouses”. In England and Wales, that has not been the case since 1753! Living together, even for many years, does not give an unmarried partner the same financial rights as a husband, wife or civil partner.
If an unmarried couple separates, the court does not have the same broad power to divide assets simply because it would be fair. Instead, the main issues usually depend on property ownership, financial contributions, agreements and children.
For example, if the family home is in joint names, both partners may have a share. If it is in one partner’s sole name, the other partner may have no automatic right to stay there or receive a share. They may need to prove that there was an agreement, understanding or contribution that gives them a legal or beneficial interest in the property.
Children are treated differently from the adults’ financial claims. Whether parents are married or unmarried, both parents are usually expected to support their children financially. Child maintenance can be arranged privately, through the Child Maintenance Service, or sometimes through the court. Using Schedule 1 of the Children Act 1989 a parent can in some circumstances ask for a lump sum, temporary property transfer until a child turns 18 or out right transfer of the property to provide a home for a child.
There is also a major difference if one person dies. A spouse or civil partner has important inheritance rights. An unmarried partner does not automatically inherit just because they lived with the deceased. If there is no Will, the surviving cohabiting partner may receive nothing under the intestacy rules, although they may have limited options to bring a claim in certain circumstances.
This is why wills are especially important for cohabiting couples. If partners want each other to inherit, they should make clear, valid wills and keep them under review.
Unmarried couples can take steps to protect themselves. A cohabitation agreement can record who owns what, how bills are paid, what should happen to the home if the relationship ends, and how other assets should be dealt with. It can be prepared before moving in together, when buying a property, after having children, or at any stage of the relationship.
Couples should also think carefully about how they own property. Joint tenants and tenants in common are different forms of ownership, and the choice can affect what happens on separation or death. Written declarations of trust can help avoid arguments about shares in a property.
The simple message is this: marriage and civil partnership create a legal financial relationship. Cohabitation usually does not. Divorce law gives the court wide powers to make orders between spouses. Cohabitation law is narrower and often depends on ownership, written agreements and specific contributions.
For clients, the key point is not to assume that living together gives the same protection as marriage. If a couple is not married or in a civil partnership, they should take advice, make wills, consider a cohabitation agreement and record clearly how property is owned. A little planning at the start can prevent a great deal of stress, cost and uncertainty later.
Should you have any queries regarding any of the TOLATA information mentioned, please do not hesitate to contact the Divorce & Family Law team at Lawson West Solicitors.
Meet with a qualified member of our Family Law team for a no-obligation initial discussion about your TOLATA needs. We look forward to helping you. Contact Us.
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