Gardner Leader

Cohabitation versus Marriage – how does the law intervene when it all goes wrong?

National Statistics indicate that marriage is still the most common form of partnership, but there are an increasing number of couples cohabiting. Seona Myerscough, Partner within the Family Team at Gardner Leader solicitors, takes a look at how differently cohabitation is treated by the law to marriage.

It is my impression from practice that despite there being significant media coverage with respect to the differences between marriage, cohabitation and civil partnership, there is still a misconception that when a couple separates, those who have been cohabiting have similar legal rights to those who are married or in a civil partnership. This simply isn’t true.

If you do not want to mingle your assets with those of your partner, then cohabitation is probably the answer for you. For example, if you cohabit, unless your partner has a legal interest in your business, such as shares or a Directorship, then when you separate they will have no claim over your business. The same applies to your pension and your personal savings and the only matters that will be an issue are those assets that you own jointly.

If you marry, then your assets are considered joint and unless you take steps such as a pre-nuptial agreement (which still has its own difficulties) your spouse can make claims against your business or any other assets. This does not necessarily mean your spouse will be successful as there are still many factors to take into account, but all assets are available for consideration and nothing is ring-fenced.

On the face of it, cohabitation may seem in ideal solution for some people as it allows separate accounting and, if you don’t get on, then it is a relatively simple matter to go your separate ways.

For some however, cohabitation can be highly disadvantageous. This particularly arises where there are children. Upon separation, the parent who is the primary carer of the children can find themselves high and dry. I recently took a case to final hearing where the couple had cohabited for a number of years. There were two small children and the father had a reasonable income and had retained the family home in his sole name throughout the relationship. The mother had stopped working to care for the children. After a final Court hearing, the mother was only entitled to the loan of a limited sum of money to buy a property which has to be repaid when the youngest child reaches 18, and Child Maintenance. Any pension, stocks and shares, savings etc., cannot be claimed against and there is no spousal maintenance. If the couple were married, the situation would have been very different.

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