The number of people getting married has reduced significantly over recent years with more people choosing to cohabit instead.

However, there are significant legal differences between a married and cohabiting couple. This includes issues surrounding inheritance, children and money.

Children

“Parental Responsibility” is defined as all the rights and duties that you would expect a parent to have in respect of a child, this principally concerns major decisions in a child’s life, such as where they live, who they see, which school they attend, any operations they may have, their religion etc. Whether parents are married or not has an impact on who has parental responsibility for a child.

For married couples either parent can register the birth of a child, and both parents will appear on the child’s birth certificate and will automatically have parental responsibility for the child. If you are unmarried parents, only the Mother can register the birth and be granted parental responsibility automatically. For Fathers they need to attend the registration and the Mother is asked to consent to their inclusion in order to obtain parental responsibility.

If the Father is not present for whatever reason, parental responsibility and inclusion on a birth certificate can be resolved at a later date by agreement between the parents or if matters cannot be agreed, a Court Order can be sought.

In respect of children therefore it is arguably preferable for the Father to be married to the Mother.

Inheritance

As a married couple if one of you passes away without the benefit of a Will, your spouse would inherit your estate. For an an unmarried couple the rules of inheritance mean that your partner will not inherit your estate automatically. Therefore, it is important for each of you to record your wishes in a Will. Regardless of your marital status if you have children it is important that you consider appointing a Guardian.

Finances

Marriage is all about sharing, but often when it comes to divorce the “All I have I give to you” vow is often forgotten. The law is clear that when a couple is married whose name an asset is in is not relevant; it is a joint matrimonial asset. This includes; savings, ISAs, bonds, pensions and income. This sharing has also created tax advantages! The law's stance on sharing continues when couples relationships end as all assets and financial resources of each person must be considered for division. For example, in a divorce it is possible to receive a share of your spouse’s pension and make a claim against their future income by way of spousal maintenance.

This is not the case for unmarried couples. If you are unmarried then there is no presumption of sharing. If you own a property together it is important to be clear on whether you intend to own that property equally or not and if not, enter into a Declaration of Trust recording that agreement. If you move into your partner’s property or you own your home and ask your partner to move in make sure you record the basis upon which you share the property in a cohabitation agreement.

As an unmarried couple in the event of separation neither person can claim against the other for a share of their personal finances including; a share of their pension, cash or investments. In the same vein each person’s liabilities are their own too. There is also no opportunity to make a claim against someone for a share of their income (spousal maintenance).  

In general terms if you are the person in the relationship with the greater share of the wealth and income and would not wish to share it with your partner in the event of your relationship ending, it is not in your interests to get married. The reality is that often it is men who have the greater income and pensions and an unmarried female partner can find herself in a very vulnerable and much poorer financial position upon separation.

Our Advice

Deciding whether to get married or not is always a personal decision and not a legal one. We would certainly not want to rid the world of romance due to legislation and rules! It is simply suggested that it is important to be aware of the differences so you and your partner can make an informed decision.

There is peace of mind and security in having open discussions with your partner, in taking advice and putting in place measures which protect your family now and in the future. This may take the form of a Will, a Declaration of Trust, marital agreement or cohabitation agreement.