Many couples choose to live together before marriage. They may do so because they haven’t yet decided to marry, or perhaps because their wedding is still some way off. Living together before marriage can of course be a good way to ‘test’ the relationship, before the couple make the commitment of marriage (there is some evidence that suggests that pre-marriage cohabitation reduces the likelihood of a later divorce).
But are there legal implications of cohabitation before marriage, and if so, what are the pros and cons of living together before marriage?
Well, there are implications, and we will look at some of them here, although whether they are ‘pros’ or ‘cons’, we will leave the reader to decide!
When a married couple separate each of them is of course entitled to seek financial support from the other, including a share of the other party’s assets and, possibly, maintenance.
But as the law stands at present there is no such right upon the breakdown of a cohabiting relationship.
Thus if a couple live together with the intention of getting married but the relationship breaks down before the marriage takes place, then they have no right to seek financial support from the other party – the fact that they once intended to get married makes no difference.
There is therefore a risk that one of the parties may suffer financial hardship if the relationship breaks down before the marriage takes place, particularly if they have made a commitment to the relationship, such as giving up their career to have a family.
Accordingly, anyone contemplating cohabiting before marriage should consider entering into a Living Together (or Cohabitation) Agreement, to protect their position should the relationship break down. For more information about Living Together Agreements, see our living together agreements page.
Whilst most people should be aware that living together does not give a couple the same rights as marriage, it is probably less well known that time spent living together before marriage may be taken into account by the divorce court when considering a financial settlement, and may have a bearing upon the settlement.
It might seem counter-intuitive that a couple may live together without then getting married and have no right to financial support at the end of the relationship, but if they do then get married that same period of cohabitation can have a bearing on the divorce settlement. That, however, is how the law operates.
The point is that, when considering what a fair financial settlement on divorce is, a factor that the court is obliged to take into account is the duration of the marriage. If the parties cohabited for a significant period before the marriage then if that period is considered to be part of the ‘duration of the marriage’ then obviously the factor could have greater weight, especially if the marriage itself was quite short.
Whether a period of cohabitation before marriage is included in the duration of the marriage depends upon the nature of the cohabitation. As a judge commented in a case back in 2003:
“…in my judgment where a relationship moves seamlessly from cohabitation to marriage without any major alteration in the way the couple live, it is unreal and artificial to treat the periods differently. On the other hand, if it is found that the premarital cohabitation was on the basis of a trial period to see if there is any basis for later marriage then I would be of the view that it would not be right to include it as part of the “duration of the marriage”.”
In summary, when it comes to the pros and cons of living together before marriage, anyone cohabiting before marriage should be aware that the cohabitation could have a bearing upon any future divorce settlement; although whether in fact it does is a matter upon which they should seek advice.
For information on cohabitation agreements, see our cohabiting and unmarried couples page.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child law, and arbitration.
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