The decision to get married or not is not really a legal one and may will say it should not be based on financial advantage or disadvantage. However, in England and Wales the law relating to married couples and those who have registered a civil partnership is very different from the law relating to couples who are not married and there are serious gaps in legal protection for unmarried couples.
This means that couples who cohabit, regardless of the length of time they have been together or if they have children together had very different legal rights or remedies in law when a relationship ends and they separate. There is no such thing as a common law marriage. Many people are unaware of this fact and assume they will be protected in the event of a relationship breakdown or death.
The Law Society, quoting statistics from the Office of National Statistics, states that unmarried, cohabiting families are the fastest growing type of family in the UK. If you are in this situation, we strongly recommend getting a cohabitation agreement drawn up to protect you, should anything go wrong in the relationship.
What is a cohabitation contract?
A cohabitation contract is a flexible agreement between you and your partner regarding finances and may include additional practical arrangements. Before getting a cohabitation contract drafted, you should think about your current joint and individual responsibilities such as the mortgage or rent, childcare costs, and other household bills, and how you want to divide them. You should also consider what might happen in the event that the cohabitation comes to an end. A cohabitation contract is a legal contract and therefore is enforceable in law. A cohabitation agreement can include:
- the couple’s financial obligations towards each other including who pays what
- ownership of items such as a car, pets, a business, and property
- details of how joint bank accounts, additional finances or other assets should be treated if the relationship breaks down
A cohabitation agreement can be drawn up at any stage of the relationship and can be amended or updated at different stages in life, for example, when thinking about having children, when buying a house, etc.
What is the difference between cohabiting and a civil partnership?
Since 2019, mixed sex couples who wanted their relationship legally recognised but did not wish to get married could enter a civil partnership. A civil partnership provides the same tax benefits and legal rights for each partner as a marriage. Living together without being married or having a civil partnership, even if you have been together for years, does not give you or your partner the same legal rights.
Who should get a cohabitation contract?
Anyone who is not married but living together with another person should consider getting a cohabitation contract drawn up to provide peace of mind. Essentially it will benefit everyone who lives together as a household, whether romantically or not: this may include gay or straight couples, as much as friends or partners taking on a joint lease or purchasing property together.
What if we later get married?
If you decide to get married or enter a civil partnership at a later date, the status of the cohabitation contract changes and it acts more like a pre-nuptial agreement, that is to say that a court would take the contract into consideration but would not be bound by it if you get married/enter a civil partnership and then later decide to divorce/dissolve the civile partnership
If you are living with your partner but not married, it is important to consider your legal position should things go wrong. The careful preparation of a bespoke cohabitation contract can help protect you if your relationship breaks down.