The legal difference between cohabiting and marriage

Separation and divorce are difficult enough without having to worry about unravelling your finances, but there are ways to make it easier. Our guides take you through what you need to know about the difference between cohabiting and marriage...

 Man considering legal implications after separating from his partner

If you have been living together - cohabiting-  but are not married then financially you have fewer rights in law than a couple in a marriage or civil partnership. 

There is no such thing as a common-law marriage, i.e. a marriage in all but name. If you are cohabiting and wish to divide your assets you can get a court order or legal agreement, but because you are not married the process has the potential to be more complex.

Your break-up will be less complicated if you can agree between you on how to divide any assets.

Cohabiting: your DIY options

If you can, aim to sort everything out without taking legal or other professional advice. However, that is not always possible.

When one of you can’t agree but you can trust each other to be open and honest consider using a mediator. Mediators are solicitors who specialise in family law but they can’t give legal advice and you will still need to use a solicitor to draw up a legally binding agreement.

If you are cohabiting: going the legal route

You may need to use a solicitor if you or your ex-partner want to claim assets - such as property. Particularly if you wanting to transfer assets into your ex-partners name. This all need to be drawn up legally.

A solicitor will be able to give you independent advice and act as a negotiator with your ex-partner’s solicitor. They can then draw up a legally binding agreement. But using a solicitor is expensive.

Marriage or civil partnership: your DIY options 

A DIY divorce, or dissolution of a civil partnership, can make sense if things are straightforward. You will still have to fill in legal forms but you will not necessarily need a solicitor, although when you have children you will still need to have an agreement in place.

Divorce or dissolution means that you are ending your relationship and make provisions for your children as well as dividing your finances. But it does not prevent any future financial claim against your ex (or them against you). There’s also no time limit for making a financial claim, although in Scotland there is.

Dividing up the family’s finances is often the part that can prove the most complex and if you don’t do it thoroughly you could find that you end up with problems later on.

Marriage or civil partnership: going the legal route 

If you can’t reach an agreement with your ex, or if you have complex financial arrangements, you may benefit from legal advice. For example, you or your ex have been married before or have children from a previous relationship. Your solicitor will help you come to a binding court order setting out what the financial arrangements are – even if the order means neither or you wish to claim anything from the other.

If you cannot agree on a financial settlement note that financial proceedings through the courts can drag on for years. In this case, it might be worth using a collaborative family lawyer; they can help you reach an agreement through meetings rather than having to go through the court for a settlement.

If you are cohabiting or married/in a civil partnership: other professionals who can help you

An accountant. If one of you feels the other is not being honest about the amount of assets they have, particularly if they own a business, a forensic accountant can help value assets, but their services are not cheap.

An actuary. If you want your pension to be taken into account when dividing assets, an actuary may be useful, depending on the type of pension you or your ex-partner has.

You can find an actuary on the website of the Institute and Faculty of Actuaries.

A financial adviser. An adviser can help with advice on selling your home and looking at savings and investments you have. They can also offer advice on pensions. You can find an independent financial adviser on the Unbiased website Financial advisers based in England or Wales who are accredited as experts in separation are listed on the Resolution website.

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Guest Wednesday, 26 September 2018

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