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Divorce, separation, cohabitation

Cohabitation, separation and divorce/couple in difficultiesMany couples start cohabiting, get married or register a civil partnership without considering the potential legal implications, of buying a house together, for example, they separate or one of the partners dies.

If you are planning cohabitation, marriage or a civil partnership, separation will probably be the last thing on your mind. Despite this, it still may be worth drawing up a cohabitation agreement.

If you are already cohabiting, married or in a civil partnership 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 pre-nuptial 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 separates and there are children involved, both cohabiting partners may have rights and responsibilities – even if only one of them is the biological parent.

If you are living together and are not planning on getting married or entering a civil partnership, a cohabitation agreement addresses these issues from the start. Cohabiting couples will want to agree how to handle their finances.

At the same time as drawing up a cohabitation agreement, you may also want to look at issues such as making a will and considering taking on parental responsibility for any stepchildren.

For couples getting married (or entering a civil partnership), a pre-marital contract fulfils a similar role. Also called pre-nuptial agreements, these can 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, an agreement that's been drawn up properly can influence the financial outcome if you divorce.

Separation and divorce

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

If you are cohabiting, there is no legal barrier to separation. It can happen 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 these five facts:

  • Adultery
  • Desertion
  • Unreasonable behaviour
  • Separation of at least two years with the other spouse’s consent to divorce
  • Separation of at least five years

The rules for ending a civil partnership are slightly different (see our guide to civil partnership).

Children and finances

Whether cohabiting, married or in a civil partnership, the welfare of any children is the main concern during a separation.

Ideally, you should negotiate arrangements between yourselves as far as possible.

Typically, the children will continue to live with one parent. The other will have agreed contact rights and will make contributions towards the children’s maintenance.

Separately, you will need to negotiate a financial agreement. Again, both partners should approach this as positively as possible. Family mediation can help reduce hostility and legal costs.

Financial issues on divorce can be complex. You will each need legal advice to help reach a fair agreement.

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