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Getting married vs. cohabitation

What difference does it make legally?

More and more couples are deciding to go down the cohabitation route (living together) rather than getting married or entering into a civil partnership. But does this make any difference as far as legal rights are concerned? 

Simply put, yes. There is a huge difference in the legal rights of married couples and civil partners compared with couples who choose to cohabit. Viberts’ family law team is frequently asked the following questions by people cohabiting in Jersey.

Is ‘common law marriage’ a legal concept? 

Contrary to popular belief, no. Unless you have entered into a valid marriage or civil partnership, the best way to deal with the rights and responsibilities relating to your cohabitation is to enter into a cohabitation agreement.

What rights do I have in respect of my children?

If you are an unmarried father and you have a child you will not have parental responsibility (PR) unless your name is on the birth certificate and your child was born on or after the 2nd December 2016. This means that most unmarried fathers will not automatically have PR. Not having PR could have a huge impact on your right to be involved in big decisions about your child. If you are married to the child’s mother then you will automatically have PR. This is a key difference.

What happens if we buy a property together without being married or in a civil partnership?

You need to be very careful. If the relationship breaks down, your rights will depend on whether or not you hold the property jointly. If the property is in the sole name of one partner and you do not have a cohabitation agreement then you need to obtain urgent legal advice. Whereas if you are married the property will form part of the matrimonial pot for division whether you are a joint owner or not. 

What is the position if one of us pays more towards the deposit and/or the on-going mortgage payments?

If you are cohabiting, your contributions need to be outlined in the cohabitation agreement. If you are married, such payments will form part of the list of considerations for dividing the matrimonial pot.

If I separate from my partner can I claim maintenance for me and/or the children?

If you are married, spousal maintenance and child maintenance will form part of the discussions during divorce or dissolution of the civil partnership. If you are cohabiting you are still able to claim child maintenance but cannot claim maintenance for yourself.

Will inheritance rights differ between married and unmarried partners?

The answer again is yes, your rights will be very different. If you are married or in a civil partnership and your partner dies you will have legal protection, but if you are cohabiting you won’t unless death has been covered in a cohabitation agreement. In either case, you must get legal advice urgently.

Conclusion 

If you are not married to your partner (or in a civil partnership) your rights are very different and more limited. We would strongly advise you to see a family lawyer to draw up a cohabitation agreement. If you are married, you have many more legal rights which may turn into advantages (but sometimes disadvantages) if you separate. Again you should obtain legal advice before taking any steps to end your marriage or civil partnership to find out where you stand.

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