Marriage and cohabitation - what is the legal difference?

Most people may not realise that there is a distinct difference in the legal sense between being married and just living with someone, known as 'cohabitation' - but there is.


There is no such thing as a 'common law marriage'! This is a myth. It does not exist.

You may also think that the longer you live with someone the more likely it is that the same legal claims are created as if you were married - this is not the case either.

The law is much more black and white when it comes to unmarried couples, or 'cohabitees'.

The starting point would be to look at how the assets are held, for example, the family home would be looked at being divided as in accordance with how it is owned. An example of this would be if you owned the property jointly as to 50% each then this is how the property would be separated unless it can be proven otherwise under an area of law known as, The Trusts of Land and Appointment of Trustees Act 1996. This area of law is commonly known as "TOLATA" claims.

The law does not provide for cohabitees to have a claim over assets which are not jointly owned. This means that if your partner owned a property in his or her sole name then as a cohabitant you would not have an automatic entitlement to it. There are some exceptions to this when children are involved and in cases that deal with an area of law known as, Schedule 1 of the Children Act 1989 but this does not give automatic ownership to a cohabitee.

In addition, a cohabitee cannot have a claim against the other's pension as a married person does. This is regardless of the length of the relationship.


In the legal sense, being married to another person places you into a category under an area of law known as the Matrimonial Causes Act 1973 when you get married. This places you each under potential financial claims against one another by virtue of being married.

These financial claims are determined firstly by working out what is in the matrimonial 'pot' and thereafter how it should be divided. Financial claims as to division can involve property, other capital, lump sum payments, periodical payments and claims relating to pensions. The court adopts a broad brush approach in most cases and has wide discretion as to how the assets (and debts) should be divided. The court has to take into consideration various factors when making this decision and these can include, but are not limited to the following; needs of the children - housing and income, length of marriage, age of parties, earning capacity, resources of the parties to name but a few.

The same cannot be said for people that live together, cohabitees as outlined above.  


The law relating to maintenance for children is clear regardless of whether you are married or living together (or not living together as the case may be).

Parents of a child have a legal obligation to maintain their children in a financial sense. Usually, it is the 'non-resident' parent that would pay child maintenance to the parent with whom the children live for most of the time.

You can work out what maintenance is to be paid by using the online calculation with the Child Maintenance Service (previously Child Support Agency). A voluntary agreement can be reached whereby one party pays directly to the other or in the event that an agreement cannot be reached, one party can refer to the Child Maintenance Service for assistance in securing payment.

How can we help?

If you are separating whether married or unmarried we are happy to offer a free 30 minute consultation to discuss your legal position. We can also assist if you are contemplating marriage or moving in with your partner and would like advice on how your legal position could change as a result including advice regarding a pre-marital or post-marital agreement.

For more information on the article above please contact Zoe Porter.

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