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Marriage vs Cohabitation Understanding your legal rights

By 09/11/2018 No Comments
by Deborah Bailey
Gowen & Stevens Solicitors

Marriage, or indeed a civil partnership, which is treated the same as marriage upon breakdown, is not for everyone. Even though there have been changes in the law allowing same sex partners to marry, a growing number of couples still regard it as old-fashioned and believe they have no requirement for ‘a piece of paper’ to confirm commitment to each other. Living together or ‘cohabiting’ remains the fastest growing family arrangement.

Often, it is only when facing the breakdown of a relationship that unmarried couples realise how that seemingly irrelevant piece of paper could have altered their situation. Furthermore, even if you remain blissfully together, there are still potential pitfalls for cohabiting families as time passes. Read on to find out how you can protect yourself and your children.

Even if you have lived together for a long time or have children together, the law will not protect you if you break up. Despite the media’s love of the term common-law wife, or indeed husband, this is not a recognised term in law. The fact that your relationship even existed, when it comes to the law, may be irrelevant. Often, the only issue to resolve in a breakdown of a cohabiting relationship will be what happens to the home. The fact that there may be children to re-home may not be a consideration and you could end up in a desperate situation.

Conversely, when looking at how to distribute a family’s assets on divorce, a spouse can call upon the matrimonial law to look at all the relevant circumstances of the relationship, often before but certainly during and after the marriage. The goal in these circumstances is to seek a result that is fair to both spouses with the welfare of the children being treated as a primary consideration. The future living arrangements of all involved will be a concern as will the financial position of each spouse following the divorce.

Whilst campaigners are lobbying for a change in the law to protect unmarried families, until this happens, people need to be aware and take steps wherever possible to protect themselves and their children. So what can you do?

Property
If you own property together and both names are on the property register, then you probably had a discussion with your conveyancing solicitor about how you would own the property so there is a chance that your ownership will already be clearly defined.

Matters become more complicated if the property is owned by only one of you. However, the non legal owner may still have an interest in the property dependant upon how finances were arranged during the relationship and what agreements you had. Seeking legal advice in this scenario is essential and can help determine your interest and how you can realise this.

If you are buying a property in which you intend to live together, speak to your solicitor about the ways in which you can own the property and how you can protect yourself.

Maintenance
If you are looking after the children, you can claim maintenance following a break-up from your former partner for your children. If this cannot be agreed, apply to the Child Maintenance Service.

Unlike divorce, unmarried former partners cannot claim maintenance for themselves from the other partner, even if they are the stay-at-home parent looking after the children.

Inheritance
As cohabiting partners, unlike married couples, there is no automatic right of inheritance if your partner dies without making a will. Whilst you and your children could make an application against your partner’s estate if they were maintaining you prior to their death, this could be a stressful experience at an already difficult time. Making a Will could avoid a lot of anxiety and uncertainty for your loved ones.

Partners should also think about taking out life assurance.

Consider also making Lasting Powers of Attorney. If you become ill and incapable of managing your own affairs a cohabiting partner has no legal right to make decisions on your behalf. This could cause difficulties with the wider family who may or may not know your wishes. Appointing your partner as your Attorney could avoid such difficulties.

Cohabitation Agreements
It’s not very romantic but thinking about your arrangements before you buy a property or move in together can save a lot of heartache if things go wrong. A cohabitation agreement is strongly recommended and a solicitor can help you consider all the issues that could arise and, provided it is properly drafted, could protect against costly court proceedings.

Ultimately, every situation is different but being aware that living together is very different from being married means that you can take steps to avoid problems later if things go wrong. Always seek advice from an experienced solicitor who specialises in this complex area of family law.

An established practice for over 120 years with offices in Cheam, Banstead and Sutton. Offering a highly personal service tailored to all aspects of your family and business life.
www.gowenandstevens.com