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Living together and marriage: legal differences

About this information

Your legal rights as a partner may depend on whether you are married or living together. Living together with someone is sometimes also called cohabitation.

Generally speaking, you will have fewer rights if you're living together than if you're married.

This information explains the legal differences between being married and living together. In England and Wales, this covers same-sex partners who can now get married. It does not cover civil partnerships.

For more information see Civil partnerships and living together – legal differences.

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Living together

Although there is no legal definition of living together, it generally means to live together as a couple without being married.

You can formalise aspects of your status with a partner by drawing up a legal agreement called a cohabitation contract or living together agreement. A living together agreement outlines the rights and obligations of each partner towards each other. It is not clear whether living together agreements are legally enforceable but they can be useful to remind a couple of their original intentions. In practice, instead of a living together agreement, or as well as, it's possible to make a series of legally enforceable agreements on specific matters, for example, how a jointly-owned house is shared. If you want to do this, you will need legal advice.

The help of a solicitor experienced in family law will be necessary. A Citizens Advice Bureau may be able to give details of suitable solicitors. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.

In England and Wales, for more information about living together agreements, see Living Together Agreements on the Advicenow website at www.advicenow.org.uk.

Common-law spouses

Although the terms common-law wife or husband are frequently used to describe a couple who live together, these relationships do not have legal recognition.

Marriage

You can choose a civil or religious marriage, but in some cases, a religious marriage alone will not be valid and you will also need a civil marriage.

Validity

Proof of a marriage can be:-

  • a certified copy of an entry in a UK register of marriages; or
  • a marriage certificate issued in the country where the marriage took place.

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Banking

Living together

If you are living together and you and your partner have separate bank accounts, neither of you can have access to money held in the other partner’s account. If one partner dies, any balance in the account will be the property of your partner's estate and cannot be used until the estate is settled.

If you have a joint account, then both you and your partner have access to the account, regardless of whether only one of you pays into it. If your relationship ends, the money will belong to both of you. However, if one of you didn't use the account at all, for example, you didn't pay any money in or take any out, it may be difficult to claim that you have any right to it.

If the account is in joint names, on the death of one partner, the other partner becomes entitled to the balance and can continue to have unlimited access to the account. However, a proportion of the balance will be taken into account when calculating the value of the estate of the person who has died.

If you separate from your partner, you should consider closing an account in joint names to avoid your partner accessing the funds or running up debts which will be your responsibility.

Marriage

If a married couple has a joint bank account, the money is owned jointly regardless of who put it into the account. On the death of one partner, the whole account immediately becomes the property of the other. Debts and overdrafts relating to a joint bank account will be the responsibility of both or either partner, irrespective of who incurred them.

If each partner in a married couple has a separate bank account and one dies, the bank may allow the other partner to withdraw the balance providing the amount is small.

If you separate from your partner, you should consider closing an account in joint names to avoid your partner accessing the funds or running up debts which will be your responsibility.

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Children

Parental responsibility

What is parental responsibility

Parents with parental responsibility are entitled to have a say in important decisions about a child's life such as the child's home, health, education, religion, name, money and property. Parental responsibility lasts until a child reaches 18 or marries between the ages of 16 and 18.

Who has parental responsibility

You will have parental responsibility if you're:

  • the child's birth mother, or
  • the husband of the child's birth mother, or
  • the female married partner of the child's birth mother and you are treated as the child's legal parent, or
  • an adoptive parent.

Who can get parental responsibility

If you don't have parental responsibility, you might be able to get it.

If you're an unmarried father or an unmarried female partner of the child's mother, you don't have parental responsibility. However, you can get parental responsibility for your child by:

  • registering (or re-registering) the birth of your child together with the child's mother, or
  • making a parental responsibility agreement with the mother and registering it at court, or
  • obtaining a parental responsibility order, or
  • becoming the child’s guardian (which would only take effect on the mother’s death), or
  • marrying the mother.

In England and Wales, for more information about parental responsibility, including how you can get parental responsibility for your partner's children, visit the Advicenow website at www.advicenow.org.uk.

Contact with children

Living together and marriage

If you separate, you and your partner may make an informal arrangement for contact with your child. This is the case whether you are living together or married. If it isn't possible to make an informal arrangement, you can apply to the court for a child arrangements order (in Northern Ireland, a contact order). The court order will usually allow contact between the child and the parent with whom the child is not living, unless there are exceptional circumstances.

Financial support of children

Living together and marriage

Both parents are responsible for financially supporting their children. The father is equally responsible even if he is neither living with the mother nor named on the child’s birth certificate. He can be contacted by the Child Maintenance Service for maintenance if he is not living with the mother. Similarly, if the child lives with the father, the mother can be contacted. Both same-sex parents are responsible for financially supporting their children if they are the children's legal parents and can be contacted by the Child Maintenance Service for maintenance.

Appointing a guardian

Living together

A mother can appoint a guardian to act on her death and a father can appoint a guardian to act on his death if he has parental responsibility for the child.

Marriage

Either parent can appoint a guardian to act in the event of both parents dying.

Inheritance

Living together and marriage

Even if there is no will, the child of unmarried and married parents has a legal right to inherit from both legal parents and the families of both parents.

Nationality

The rules about the nationality of children are complicated and depend on the parents’ immigration status as well as whether the parents are married or living together.

If you are worried about the nationality or immigration status of your children consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.

See Help with immigration problems.

Adoption

Both married and cohabiting couples can apply to adopt a child jointly.

In England and Wales, for more information about adoption, see Adopting a child in Family fact sheets.

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Death and inheritance

Living together

If one partner dies without leaving a will, the surviving partner will not automatically inherit anything unless the couple owned property jointly. As an unmarried couple, you need to make wills if you wish to make sure that the other partner inherits.

If one partner dies without leaving enough in their will for the other to live on, the surviving partner may be able to go to court to claim from the estate.

If you inherit money or property from an unmarried partner, you are not exempt from paying inheritance tax, as married couples are.

For more information about inheritance tax, see Inheritance tax.

Marriage

When your married partner dies, you will inherit under the will of the dead partner if it makes provision for you.

If either married partner dies without making a will, the other will inherit all or some of the estate.

For more information about wills, see Wills.

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Debts

Living together and marriage

You are liable for any debts which are in your own name only, but not for any debts which are just in your partner's name.

You may be responsible for the whole of debts in joint names and for other debts for which you have 'joint and several' legal responsibility. For example, in England and Wales, if you owe council tax, you and your partner will both be responsible for the debt, regardless of whether one of you contributes or not.

If your partner has a debt for which you have acted as guarantor, you will also be held legally responsible for paying it.

If you're married, you will not be responsible for any financial obligations or debts that your partner had before you were married.

For more information, in England and Wales, about joint debts if you split up with your partner and aren't married, see Breaking Up Checklist on the Advicenow website at: www.advicenow.org.uk.

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Domestic violence

Living together and marriage

You can go to court for an order to protect yourself and your children if your partner is violent. The court can order the violent partner to leave the home for a certain period of time and, if the court order is not obeyed, the violent partner can be arrested.

A man can be convicted of raping his partner, regardless whether she is his wife or not.

For more information, see Domestic Violence.

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Ending a relationship

Living together

An unmarried couple can separate informally without the intervention of a court. The court does have power to make orders relating to the care of the children.

For more information about ending a cohabitation, see Ending a relationship when you're living together.

Marriage

A married couple can separate informally but if you want to end the marriage formally, you will need to go to court and get divorced. Both partners have a right to stay in the home until either there has been a divorce or the court has ordered one partner to leave.

For more information about ending a marriage, see Ending a marriage.

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Financial support (maintenance)

Living together

Neither partner has a legal duty to support the other financially. If there are children, see under heading Children.

Voluntary agreements to pay maintenance to each other may be difficult to enforce.

If you and your partner live together and are claiming a means-tested benefit such as Income Support, income-related Employment and Support Allowance, income-based Jobseeker’s Allowance or Working Tax Credit, you will be treated as a couple and your income assessed jointly.

Marriage

Each married partner has a legal duty to support the other.

If your partner won't support you and you're still living together, you can ask a court to order them to support you. Your ex-partner may have to continue to support you after your marriage has ended if you have made a legal agreement or if there is a court order.

You and your partner can make an agreement that neither of you will support the other.

If there are children, see under heading Children.

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Housing

Tenants

As a tenant, your rights will depend largely on your tenancy status. If you are not sure what this is, in England and Wales see Renting from a private landlord or Renting from a social housing landlord.

Living together

If you are the unmarried partner of a tenant, whether in private or social housing accommodation, you will usually have no rights to stay in the accommodation if the tenant asks you to leave.  It is therefore advisable for partners who are living together to be joint tenants, as this gives them equal rights and responsibilities.  Many social housing landlords will require partners who live together to take on a tenancy as joint tenants.  It is possible to convert existing sole tenancies to joint tenancies if the sole tenant and the landlord agree.

However, as an unmarried partner, you can get short-term rights to stay if you apply to court. A court can also transfer a tenancy, whether it is a sole or joint tenancy.

You may also have different rights if your partner has been violent towards you. If your partner has been violent towards you, see Domestic violence.

If you are an unmarried partner who is not a tenant and need to stay in the home, you should consult an experienced adviser, for example, a family law solicitor. A Citizens Advice Bureau will also be able to give details of local solicitors. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.

For more information, see Relationship breakdown and housing.

If a sole tenant dies, a surviving partner may have the right to continue living in the home. If you are in this situation, you should seek legal advice.

Marriage

Both married partners have the right to live in the matrimonial home. It does not matter in whose name the tenancy agreement was made. This applies unless a court has ordered otherwise, for example, in the course of separation or divorce proceedings.

If you and your ex-partner both agree on who should stay in the home, you can ask the landlord to transfer the tenancy into the name of the partner who is staying. If both names are on the tenancy, you can ask for one of the names to be taken off.

If you can't agree on who should stay and you are divorcing, the long-term right to your tenancy can be decided alongside divorce proceedings. The court can transfer the tenancy to your name, even if your partner is the sole tenant, or you and your partner were joint tenants. However, if you are not separating legally, for example, divorcing, the court will only agree to transfer a tenancy if it decides it is in the best interests of your children.

If you want to apply to transfer a tenancy, you should do this at the same time that you apply for a divorce. If you don't do this, it may not be possible for the tenancy to be transferred at a later date.

For more information, see Relationship breakdown and housing.

Owner-occupiers

Living together

A property may be owned in the sole name of one partner or may be owned jointly.

If you are the sole owner, you have a right to stay in the home. However, your partner may be able to claim a 'beneficial interest' in it – see below.

If you are joint owners, you and your partner have equal rights to stay in the home. However, if you have children, you can ask a court to transfer the property into your name. The court will only do this if it decides it is in the best interests of your children. It is usually done for a limited period, for example, until your youngest child is 18 years old.

If your partner is the sole owner, you may have no rights to remain in the home if you are asked to leave. However, if you have children, you can ask a court to transfer the property into your name. The court will only do this if it decides it is in the best interests of your children. It is usually done for a limited period, for example, until your youngest child is 18 years old.

If you don't have children and your partner is the sole owner, the only way you may be able to claim long-term rights to the property is if you are able to show you have a 'beneficial interest' in it. This is a way of getting a court to formally recognise contributions you have made towards the home. The court could also recognise an understanding you had with your ex-partner when you bought the home that you would have a share in it if it were sold. If you are able to prove you have a beneficial interest in the home, you may be able, for example, to get the right to live in the home, prevent your ex-partner from living there or get a share of the proceeds if the home is sold.

You may be able to ask a court to make a decision about who has the right to stay in the home on a short-term basis. This is called an occupation order. You can also apply for an occupation order to allow you to return to the home if you've left. You can apply for an occupation order if you're the sole owner, joint owner, have a beneficial interest or are the partner of a sole owner. However, if you're not the owner or joint owner, you can only apply for certain types of occupation order. An occupation order usually lasts for only a limited period of time.

If you want to claim beneficial interest in your home or apply for an occupation order, you will need to get legal advice about this.

For more information about getting legal advice, see in England and Wales, Using a legal adviser, or in Northern Ireland, Using a legal adviser, or ask your local Citizens Advice Bureau for help. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.

For more information, see Relationship breakdown and housing.

Marriage

Both married partners have a right to remain in the matrimonial home, regardless of who bought it or has a mortgage on it. This is known as home rights. You will have the right to stay in the home until a court has ordered otherwise, for example, in the course of a separation or divorce settlement.

If you and your partner are divorcing, the long-term right to ownership of your property can be decided alongside divorce proceedings. The court has the power to transfer property regardless of original ownership. However, if you are not separating legally, the court will only agree to transfer ownership of a property if it is in the best interests of your children.

If you are the sole or joint owner of the home, your partner will not be able to sell it without your agreement.

However, if your partner is the sole owner, you will need to register your home rights in order to protect your interests. Unless you register your home rights, you will not be able to prevent your partner from selling the home or be able to remain there if it is sold.

You can register your home rights, regardless of whether or not you are still living in the home.

You will need to register your home rights with either the Land Registry or at the Land Charges Department, depending on whether your home has already been registered or not.

If you register your home rights, they will show up when buyers do a search on the home. This would make them aware of your right to stay in the home and prevent the sale going through.

In England and Wales, you can find more information about registering your home rights on the GOV.UK website at www.gov.uk.

This is a complicated area of the law and you should get expert legal advice.

For more information about getting legal advice, see in England and Wales, Using a legal adviser, or in Northern Ireland, Using a legal adviser, or ask your local Citizens Advice Bureau for help. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.

For more information, see Relationship breakdown and housing.

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Living together and marriage

When one partner of a couple is assessed for legal aid, the other partner’s income and capital are usually taken into account.

However, this will not be the case if:

  • there is a conflict of interest between you, for example, you are on opposing sides in the court case, or
  • you live apart and at least one of you considers the relationship to be over.

For more information about legal aid in England and Wales, see Help with legal costs and in Northern Ireland, see Help with legal costs.

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Next of kin

In some situations, for example, when you go into hospital or complete a life insurance form, you may be asked to give the name of your next of kin. Next of kin has no legal meaning but, in practice, hospitals and other organisations generally recognise spouses and close blood relatives as next of kin. However, sometimes couples who live together aren't recognised as being next of kin.

Living together

If you live together, whether or not you will be recognised as your partner's next of kin will depend on the organisation you're dealing with.

For example, prisons will usually accept the name of a partner as the person to contact if something happens to the prisoner.

Hospitals will usually accept your partner as the next of kin.

No one is entitled to give consent to medical treatment for another adult unless they are unconscious or unable to give consent through mental incapacity. However, in practice, doctors do usually discuss decisions with the patient's family and this will normally include your partner.

If an organisation refuses to accept the name of your partner as your next of kin, there is little you can do about this other than to ask them to change their policy.

Marriage

Your spouse will always have authority to act as next of kin.

No one is entitled to give consent to medical treatment for another adult unless they are unconscious or unable to give consent through mental incapacity. However, in practice, doctors do usually discuss decisions with the patient's family.

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Money and possessions

Living together

The ownership of possessions can be quite complicated. However, there are some general rules which apply, for example, property you owned before you started cohabiting remains yours and the person who bought an item generally owns it. It will be owned jointly if bought from a joint account. Property given by one partner to the other belongs to the receiver of the gift. However, this can be difficult to prove.

If one partner gives the other housekeeping money, any property brought with savings from it will probably belong to the person giving the money. This is different from the position in marriage where savings from the housekeeping money would in a court dispute usually be divided equally between the husband and wife.

Marriage

You are entitled to acquire and to hold any land, property, savings or investments in your own right during marriage. The same is true for your partner. Any property you owned prior to the marriage will usually continue to be regarded as yours. However, if the marriage breaks down, any property owned by you or your partner will be taken into account when arriving at a financial settlement on divorce.

In the absence of any agreement to the contrary, wedding presents given by your friends or relatives are considered to be your property if the marriage does not take place. The same is true for your intended partner. If the marriage breaks up, they are considered to belong to the partner whose friend or relative gave them.

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Names

Living together

As a an unmarried partner you are entitled to be known by whatever name you wish and can change that name at any time. Two people living together can decide to use the same family name, although legally they do not have to.

Marriage

If you're a woman, when you marry you are not legally required to take your husband’s family name. The family name you use depends upon your culture, politics, choice and religion.

Many women are now choosing to continue using their existing family name. Others use one name in their job and another in their personal life. There is nothing in law which prevents you from doing this and you can still sign documents in your previous name.

If you get divorced or are widowed, you can continue to use your husband's family name, or you can go back to using your previous name, although you may be asked to show your birth certificate if you want to do this.

Anyone can change their name at any time, and so as a man you can change your family name, on marriage, to that of your wife.

For more about changing your name , see Change of name,

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Occupational and personal pensions

Living together

The provisions of occupational and personal pensions for dependants of a pension scheme member will depend on the rules of the scheme. Most schemes offer benefits to dependent children and some will offer benefits to a dependent partner.

Personal pensions can be arranged to give cover to whoever the pension scheme member wants, provided the pension scheme member is able to pay what might be large contributions to the pension fund.

Where a scheme is suitable for couples living together, you will need to complete an 'expression of wishes' form, which states who you want benefits to be paid to when you die.

Even where a scheme isn't suitable for couples living together, trustees of the scheme or a union representative might be able to help you if you want the benefits to go to your partner.

Marriage

Occupational pension schemes must offer equal benefits for husbands and wives. They also generally offer benefits for dependants, for example, children.

If you joined an occupation pension scheme before 17 May 1990, the rules were slightly different. If you're a widowed man, you might not get any benefits which the pension earned before that date, although you should get any benefits earned after it.

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Sexual relations

Living together

In England and Wales, it is legal for a couple to have a sexual relationship, as long as they are both 16 or over and they both consent. In Northern Ireland, the age limit is 17.

For information about young people and their right to sexual activity, see Young people - health and personal.

Marriage

If the husband and wife have not had sexual intercourse during the marriage (consummated the marriage), this would be grounds for the marriage to be annulled. In England and Wales, this does not apply to same-sex spouses.

A man can be charged with raping his wife, whether or not they are living together.

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Welfare benefits and tax credits

All couples, whether married or living together are treated in the same way when they are assessed for entitlement to most welfare benefits, Working Tax Credit or Child Tax Credit. If they are claiming means-tested benefits, they will be expected to claim as a couple, and the income, savings and financial needs of both partners are taken into account.

There are different rules for different benefits and tax credits. To find out more about a particular welfare benefit or tax credit, see the Benefits section of Adviceguide.

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Student grants and loans

Student grants

If you are a student living with your partner, your partner's income will be taken into account when deciding if you are entitled to a student grant. This is the case whether you are married or living together.  It does not apply if you depend on your parents financially.

Student loans

There are two types of student loans - one for tuitions fees and one for maintenance.

You can take out a student loan for tuition fees, regardless of the income of your spouse or partner who lives with you.

All eligible full-time students can get a student loan for maintenance, but the exact amount you can borrow will depend on several things, including  the income of your spouse or partner.

You can take out 75 per cent of the maximum student loan for maintenance regardless of your household income, which includes the income of your spouse or partner.

Whether you get the remaining 25 per cent, depends on your household income.

For more information about student grants and loans, in England see Financial support for higher education students, in Wales, see Student finance Wales, and in Northern Ireland, see Financial support for higher education students.

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Tax

Living together

If you are unmarried, you are taxed separately. Each partner is entitled to a personal allowance when calculating how much income tax they must pay.

Marriage

Spouses are taxed independently and each partner can claim a personal allowance. Where at least one person in a married couple was born before 6 April 1935, a married couple's allowance can be claimed as well as the personal allowance

For more information about income tax and personal allowances, see Income tax allowances and amounts.

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Witnesses

Living together

If you're an unmarried partner, you can be called as a witness for or against the other partner in both civil and criminal cases. You can be forced to appear and give evidence.

Marriage

In civil cases, one married partner can be a witness for or against the other. You can also be forced to appear.

In criminal proceedings, the general rule is that a married partner is able to be a witness for or against the other partner.

You can be forced to appear as a witness for the defence in a criminal case against your husband or wife.

However, you can't be forced to appear as a witness for the prosecution in a criminal case against your husband or wife, except in certain types of cases. These include:

  • cases of domestic violence against you
  • cases involving violence against someone under 16
  • cases involving a sexual offence against someone under 16.

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