Living together and Marriage: The legal differences

Your legal rights as a partner may vary depending on whether you are married or living together. Living together can also be referred to as  cohabitation.

As a generalised rule, you will have fewer rights if you’re living together than if you’re married.

Below we will explain some of the legal differences between being married and living together. In England and Wales, this covers same-sex partners who can now get married. This does not cover civil partnerships

Living together

There is no legal definition of living together, in its simplest terms it means to live together as a couple without being married. Couples who live together can sometimes be referred to as common-law partners.

It is possible to formalise aspects of your relationship with your partner by drawing up a legal agreement called a cohabitation contract or living together agreement. These agreements outline the rights and obligations of each partner towards each other. If you make a such an agreement, you should also make a legal agreement about how you share your property – this is called a ‘declaration of trust’.

If you want to make a living together agreement or a declaration of trust, you can email Cawley and Davis info@cawleyanddavis.com and book an appointment with one our representatives to discuss furthe

Marriage

You can choose a civil or religious marriage, but in some cases, a religious marriage alone will not be valid and you will also need a civil marriage.

Validity

Proof of a marriage can be:-

  • a certified copy of an entry in a UK register of marriages; or
  • a marriage certificate issued in the country where the marriage took place.

Banking

Living together

If you are living together and you and your partner have separate bank accounts, neither of you can have access to money held in the other partner’s account. If one partner dies, any balance in the account will be the property of your partner’s estate and cannot be used until the estate is settled.

If you have a joint account, then both you and your partner have access to the account, regardless of whether only one of you pays into it. If your relationship ends, and you can’t agree who the money belongs to, a court might have to decide. However, if one of you didn’t use the account at all, for example, you didn’t pay any money in or take any out, it may be difficult to claim that you have any right to it.

If the account is in joint names, on the death of one partner, the other partner becomes entitled to the balance and can continue to have unlimited access to the account. However, a proportion of the balance will be taken into account when calculating the value of the estate of the person who has died.

Marriage

If a married couple has a joint bank account, the money is owned jointly as long as they’re married. It doesn’t matter who put the money into the account. On the death of one partner, the whole account immediately becomes the property of the other. Debts and overdrafts relating to a joint bank account will be the responsibility of both or either partner, irrespective of who incurred them.

If each partner in a married couple has a separate bank account and one dies, the bank may allow the other partner to withdraw the balance providing the amount is small.

Death and inheritance

Living together

If one partner dies without leaving a will, the surviving partner will not automatically inherit anything unless the couple owned property jointly. As an unmarried couple, you need to make wills if you wish to make sure that the other partner inherits.

If one partner dies without leaving enough in their will for the other to live on, the surviving partner may be able to go to court to claim from the estate.

If you inherit money or property from an unmarried partner, you are not exempt from paying inheritance tax, as married couples are.

Marriage

When your married partner dies, you will inherit under the will of the dead partner if it makes provision for you.

If either married partner dies without making a will, the other will inherit all or some of the estate, depending on how much it’s worth.

Cawley and Davis can assist with drawing up wills they are £99 per person all inc. For more information about wills please email us at Info@cawleyanddavis.com

Debts

Living together and marriage

You are liable for any debts which are in your own name only, but not for any debts which are just in your partner’s name.

However you may be responsible for the whole of debts in joint names and for other debts for which you have ‘joint and several’ legal responsibility. An example being council tax, you and your partner will both be responsible for the debt, regardless of whether one of you contributes or not.

If your partner has a debt for which you have acted as guarantor, you will also be held legally responsible for paying it.

If you’re married, you will not be responsible for any financial obligations or debts that your partner had before you were married.

Housing

Owner-occupiers
Living together

A property may be owned in the sole name of one partner or may be owned jointly.

If you are the sole owner, you have a right to stay in the home. However, your partner may be able to claim a ‘beneficial interest’ in it – see below.

If you are joint owners, you and your partner have equal rights to stay in the home. If you can’t agree what should happen to the home, you can ask the court to decide – for example, they might decide you should sell the home. However, if you have children, you can ask a court to transfer the property into your name. The court will only do this if it decides it is in the best interests of your children. It is usually done for a limited period, for example, until your youngest child is 18 years old.

If your partner is the sole owner, you may have no rights to remain in the home if you are asked to leave. However, if you have children, you can ask a court to transfer the property into your name. The court will only do this if it decides it is in the best interests of your children. It is usually done for a limited period, for example, until your youngest child is 18 years old.

If you don’t have children and your partner is the sole owner, the only way you may be able to claim long-term rights to the property is if you are able to show you have a ‘beneficial interest’ in it. This is a way of getting a court to formally recognise contributions you have made towards the home. The court could also recognise an understanding you had with your ex-partner when you bought the home that you would have a share in it if it were sold. If you are able to prove you have a beneficial interest in the home, you may be able, for example, to get the right to live in the home, prevent your ex-partner from living there or get a share of the proceeds if the home is sold.

You may be able to ask a court to make a decision about who has the right to stay in the home on a short-term basis. This is called an occupation order. You can also apply for an occupation order to allow you to return to the home if you’ve left. You can apply for an occupation order if you’re the sole owner, joint owner, have a beneficial interest or are the partner of a sole owner. However, if you’re not the owner or joint owner, you can only apply for certain types of occupation order. An occupation order usually lasts for only a limited period of time.

Marriage

Both married partners have a right to remain in the matrimonial home, regardless of who bought it or has a mortgage on it. This is known as home rights. You will have the right to stay in the home until a court has ordered otherwise, for example, in the course of a separation or divorce settlement.

If you and your partner are divorcing, the long-term right to ownership of your property can be decided alongside divorce proceedings. The court has the power to transfer property regardless of original ownership. However, if you are not separating legally, the court will only agree to transfer ownership of a property if it is in the best interests of your children.

If you are the sole or joint owner of the home, your partner will not be able to sell it without your agreement.

However, if your partner is the sole owner, you will need to register your home rights in order to protect your interests. If you register your home rights, it can help prevent your partner from selling the home or making you leave if it’s sold.

You can register your home rights, regardless of whether or not you are still living in the home.

You will need to register your home rights with either the Land Registry or at the Land Charges Department, depending on whether your home has already been registered or not.

If you register your home rights, they will show up when buyers do a search on the home. This would make them aware of your right to stay in the home and prevent the sale going through.

For advice on any of the above you can contact Cawley and Davis on info@cawleyanddavis.com