Posted by David Cobern on 28th November 2017

The legal differences between marriage and cohabitation.

How much do people understand about the difference between the rights of cohabitees and the rights of those who are married?

Academic research into the subject and our own anecdotal experience as specialist family lawyers tell us that there remains a good deal of confusion about the distinction.

What is the difference and why does it matter?

There is a clear indication in the marriage vow. The powerful words ‘for better, for worse’, ‘for richer, for poorer’, ‘in sickness and in health’ and ‘all that I have I give to you, all that I have I share with you’ resonate in law as well as in the heart. The meaning could not be clearer; it is this unequivocal expression of commitment to share that underpins the law on divorce. It empowers the courts to share assets and income between the couple on divorce, according to factors such as need, contribution, earning capacities, age and health.

For unmarried couples, the courts do not have these powers. There is no power to award maintenance or lump sums, or to adjust shares in property based on things like need. This means that unmarried couples have to fall back on the law relating to property in a similar manner to any joint owners of property (e.g. friends and business partners). The powers of the court are restricted to resolving disputes about shares in property and making orders to release the money by sale. Shares in property are, in general, divided according to contributions (unlike married couples where other factors are also considered) unless a cohabiting couple previously defined what their shares are to be.

The situation is more complex for former cohabitees who have put money into a property owned by their former partner. These individuals must rely on the concept of ‘equity’ – that the courts will provide them with a remedy which is fair, regardless of the other party’s ‘legal’ ownership. However, this is also based on contributions in money and (occasionally) things such as physical labour.

Are there any similarities?

One area where there are similarities between the rights of a married couple and the rights of cohabitees is in relation to financial provision for their children. However, there is still a difference. In the case of the unmarried, claims for a housing fund for a child of a relationship are almost always made on the basis that the money is borrowed and repayable to the party who provided it when the child is older.

Other areas where the law has developed in recent years to give the unmarried more rights include suitability to be considered as applicants for adoption, acquiring widows’ rights in relation to a deceased partner’s pension and the right to claim against the estate of a deceased former partner.

What needs to happen now to protect unmarried couples?

There remains much to be done if those who wish to remain unmarried are to enjoy anything like the range of rights available to their married counterparts. The task is an important one because unmarried cohabitation is rapidly on the rise.

The current range of common law and statutory remedies do not adequately protect the rights of these individuals and their children because relationships between cohabitees vary so much in terms of commitment emotionally and financially, with and without children.

If you have any queries and we can help in any way, please get in touch. I can be reached on 01392 457151 or by email David.Cobern@thefamilylawco.com.

The Family Law society accreditation in Advanced Family lawImage of The Law Society Accreditation of Children Law.
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