Cohabitation, separation and divorce

Cohabiting or getting married creates significant legal issues, with so many relationships ultimately ending in separation or divorce.

If you are planning cohabitation or marriage, while the possibility of separation may be the last thing on your mind, it’s worth considering drawing up some form of cohabitation agreement.

If you are already cohabiting or married and your relationship is in trouble, take legal advice. The right approach to separation or divorce can help you reach a fair agreement with minimum upset.

Cohabitation and prenuptial agreements

Cohabiting couples often assume that living together as a couple creates similar rights and responsibilities as marriage – or none at all. Both beliefs are wrong.

Cohabitation does not generally give you automatic rights to each other’s property. And if your partner dies, cohabiting does not entitle you to inherit. Conversely, if a cohabiting couple separate and there are children involved, then both cohabiting partners may have rights and responsibilities – even if only one of them is their biological parent.

A cohabitation agreement addresses these issues from the outset. Cohabiting couples can agree how financial issues should be handled. At the same time as drawing up a cohabitation agreement, you may also want to look at issues such as drawing up new wills and considering taking on parental responsibility for any stepchildren.

For couples getting married, a pre-marital contract fulfils a similar role. A pre-nuptial agreement may be particularly important if there are substantial assets involved or children from a previous marriage. Although a pre-marital contract may not be strictly enforceable, a properly drawn up agreement can influence the financial outcome if you later divorce.

Separation and divorce

Whether you are cohabiting or married, the end of a relationship is almost inevitably painful. Unfortunately, disputes over finances and children tend to make matters worse.

If you are cohabiting, there is no legal barrier to separation as and when either partner wishes. For divorce, the marriage must have lasted at least one year and broken down irretrievably. The divorce petition will need to establish one of five facts: adultery; desertion; unreasonable behaviour; separation of at least two years with the other spouse’s consent to divorce; or separation of at least five years.

Whether cohabiting or married, the welfare of any children is the primary concern. Ideally, you should negotiate arrangements as far as possible between yourselves. Typically, the children will continue to live with one parent, with the other having agreed contact rights and making contributions towards the children’s maintenance.

Separately, you will need to negotiate a financial agreement. Again, both partners should try to approach this as positively as possible – perhaps considering family mediation – to minimise hostility and legal costs. Financial issues on divorce can be complex and you will each need legal advice to help reach a fair agreement. 

More on cohabitation, separation and divorce:

• Divorce and separation
• Divorce and separation – financial matters: 30 FAQs
• Living together as a couple 

Find more FAQs, briefings and tools on Cohabitation, separation and divorce in the Resources box on the right.