What is Cohabitation and How Does It Impact Divorce in England and Wales?
What is Cohabitation?
Cohabitation refers to a situation where two people live together as a couple without being legally married or in a civil partnership. Often referred to as “living together” or erroneously as a “common-law marriage” (though the latter is not a legal term in the England and Wales), cohabiting couples typically share a home, finances, and a domestic life, but do not have the legal status of a married couple or civil partners.
Does Cohabitation Affect Divorce?
In England and Wales, cohabitation does not directly impact divorce, since divorce laws only apply to legally married couples or those in civil partnerships. However, for cohabiting couples who separate, there is no equivalent legal process for “divorce.” Instead, their separation is treated differently under family law, which can affect financial settlements, property rights, and other matters.
Key Differences Between Cohabitation and Divorce:
- Legal Rights:
- Married Couples: When a married couple divorces, they are entitled to claim a fair division of assets and financial support, including spousal maintenance if necessary. The court has a broad discretion to divide assets based on factors such as each party’s contributions, the length of the marriage, and the needs of each party.
- Cohabiting Couples: If a cohabiting couple splits up, there is no automatic legal right to share assets or receive spousal support. Property and assets are typically divided based on ownership, meaning that the person whose name is on the title or deed of a property generally retains ownership, unless the other party can prove a beneficial interest.
- Property Rights:
- Married Couples: Upon divorce, married couples have the right to claim an equitable share of assets, including family homes, regardless of whose name is on the deed.
- Cohabiting Couples: Cohabiting couples do not have automatic property rights. If the couple separates, the property is divided based on legal ownership, and the courts do not generally intervene to divide property unless there is a formal agreement, like a cohabitation agreement, or a claim to a beneficial interest (e.g., if both partners contributed to the mortgage or maintenance).
- Children’s Rights:
- For both married and cohabiting couples, child arrangements and maintenance rights remain the same. Parents—whether married or cohabiting—have a duty to support their children financially, and both parties have the right to seek a child arrangements order through the courts if there is a dispute.
Cohabitation Agreements:
To avoid disputes upon separation, cohabiting couples can draft a cohabitation agreement, which outlines the division of assets, finances, and responsibilities should the relationship end. While this agreement is not legally binding, it can be used as evidence in court to determine asset division and financial responsibilities.
The Growing “Cohabitation Crisis”:
In the UK, the number of cohabiting couples has increased significantly in recent years. Despite this, there is a lack of legal recognition and protection for cohabitants when relationships end. Many people mistakenly assume that they have the same legal rights as married couples, which often leads to disputes when relationships break down. This has led to calls for reform to offer better legal protections for cohabiting couples, especially when it comes to financial support and property division.
Conclusion:
While cohabitation does not directly impact divorce in England and Wales, it creates a different set of legal considerations for couples who separate. Married couples have a clear legal process for divorce and financial settlements, whereas cohabiting couples may face difficulties when dividing assets or seeking financial support. It’s important for those living together without marriage to understand their legal rights and consider a cohabitation agreement to safeguard their interests in case of a split.