Many couples live together for a significant period before they marry. When the marriage ends and financial matters are resolved, the question of whether that period of cohabitation is taken into account can make a real difference to the outcome.
In England and Wales, there is no automatic recognition of cohabitation in the same way that marriage is recognised. Cohabiting couples do not have the same legal rights as married couples, and the mere fact of living together does not create financial entitlements.
However, when a marriage ends, the court has the power to look at the full picture of the relationship. Where a couple lived together for many years before marrying, and where their relationship during that period was effectively the same as during the marriage, the court can take that pre-marital period into account when assessing what a fair outcome looks like.
The leading case in this area established that where there has been a seamless transition from cohabitation to marriage, the court can treat the entire period as part of the relationship for the purposes of financial remedy proceedings. A couple who lived together for five years and were then married for three years may have the five years of cohabitation taken into account, giving an effective relationship length of eight years.
This is significant because the length of the relationship directly affects how the court approaches the sharing of assets. A longer effective relationship duration generally increases the weight given to equal sharing and reduces the significance of what each party brought in at the outset.
Our family law barristers can advise on how the period of cohabitation is likely to be treated in your case.
Not every period of living together before marriage will be treated as part of the relationship for these purposes. Where the cohabitation was in a different country, where the parties lived together as flatmates rather than as a couple, or where the relationship had a different character during that period, the position may be different.
The court looks at the substance of the relationship during the period of cohabitation, not simply the fact that the parties shared an address. Evidence about how the couple lived, whether finances were shared, and what the nature of the relationship was during that time can all be relevant.
Where significant assets were accumulated during the period of cohabitation, the question of how they are treated on divorce depends on the same analysis. If the cohabitation period is treated as part of the effective relationship, then assets built up during that time may be treated as matrimonial assets. If the cohabitation is not taken into account, those assets may retain more of a separate character.
This matters in cases where, for example, one party owned property before the marriage that significantly increased in value, or where substantial savings were built up jointly during the period of living together before the wedding.
Accurately establishing the length of the effective relationship and how the pre-marital cohabitation period is likely to be viewed is an important part of any early financial advice in divorce proceedings. Getting this wrong can lead to unrealistic expectations or a settlement that undervalues your position.
Taking advice at an early stage, before negotiations have begun in earnest, gives you the clearest possible starting point for understanding what a fair outcome looks like in your specific case.
You can read more in our guide to the differences between using a barrister and a solicitor for divorce financial advice.
If you would like to get a quote for speaking with a direct access barrister about your situation, get in touch with us today.