What difference does marriage make

Last week one of my friends got married. Before the wedding the usual remarks were made about the "last night of freedom" and my friend commented "what difference is it going to make?"

Her comment got me thinking. Prior to her wedding we were in largely the same situation; both of us had partners with whom we each have two children and own houses. That hasn't changed, but what has changed is what would happen if my friend and her husband separated compared to if my partner and I separated.

Legally speaking, this is where being married can make a difference. When you get married the legal rules under which your separation is managed come from matrimonial law, the Matrimonial Causes Act 1973. No similar act exists for cohabitees and the myth of a "common law marriage" is just that - a myth.

If my friend and her husband divorced there are a variety of claims they could make against one another depending on their circumstances, and these include claims over property, lump sum payments, periodical payments and claims relating to pensions. Periodical payments are income payments from one spouse to another, usually where there is a significant difference in the parties' incomes. Pension claims can include the sharing of a pension fund between spouses to provide the other with a pension fund on retirement, attaching the rights of one spouse to a pension fund to provide an income in retirement or offsetting a possible pension claim with other assets.

The focus when dividing the assets of the marriage would be the needs of the parties and how these can be met from the assets available looked at in conjunction with a number of other factors also laid out within the legislation.

The law does not so concern itself with the needs of unmarried couples. If my partner and I were to separate there is no law which manages the division of our assets in the same way.

Our property would be divided in accordance with the shares in which we own it, i.e. we each own 50% and so would each receive 50% of the equity in the property after payment of the mortgage, solicitors costs and estate agents fees. If there are no defined shares then the assumption is usually that each party owns 50% unless it can be proved otherwise. If there was a dispute about the shares it would be a civil law, The Trusts of Land and Appointment of Trustees Act 1996 (commonly referred to as TOLATA), that would be used to resolve this dispute and dictate what share each party would receive based on the financial contributions of the parties.

At present the law does not provide for unmarried couples to have a claim over assets which are not jointly owned and they have no entitlement to any share of the others pensions or payments from the others income regardless of the length of the relationship.

The one thing we would have in common would be maintenance for the children. Parents, whether married or not, have a legal obligation to maintain their children and it is usually the case that the parent who does not live with the children would be expected to pay child maintenance to the parent with whom the children live. It is better if this can be agreed between the parents but if this is not possible then the Child Maintenance Service would resolve this issue.

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. 

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