Comparison of Marriage/CP and Cohabitation

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  • Comparison of Marriage/CP and Cohabitation
    • Formation
      • Marriage Act 1949/ CP 2004
      • Formalities required to create a valid marriage/CP
      • Cannot enter if already in a marriage or CP
      • Minimum age is 16
      • Parental Consent required until 18
      • prohibitions based on consanguinity and affinity
      • No specific legislation
      • No formalities, but must live together
      • No monogamy requiremtns
      • Cannot consent to sex unless 16. COA 2003
      • Prohibitions based on consanguinity and affinity if a child - SOA 2003
    • Termination
      • End on death of one party
      • Can be annulled or dissolved by the court - MCA 1973 or CPA 2004
      • Judicial separation is available
      • Ends on death of one party
      • Cessation - No longer living together
      • No equivalent of judicial separation
    • Property
      • MPAPA 1970 applies to spouses, CP's and fiancées
      • Have home rights under s.30 FLA 1996,, they are entitled applicants for occupation orders
      • Cannot be evicted without  leave of court
      • Protection is available under the Insolvency Act 1986
      • MPAPA 1970 does not apply, unless engaged
      • Do not have home rights - disadvantaged for applying for an occupation order
      • They can be evicted by the owner
      • Protection under IA 1986 only applies if there are children
    • Children - AR
      • Husband is the father unless he did not consent - s.35 HFEA
      • Other female legal parent - s.42 HFEA
      • Male partner is only father if agreed conditions are satisfied - s.36-37
      • Other female legal parent - s.43+44
    • Death
      • Invalidates a will - s.18 Wills Act 1837
      • Can apply for letters of admin or grant of rep, if no executor is appointed
      • Inherits the bulk of the estate under intestacy - s.46 Administrations of Estates Act 1925
      • Has no impact on will
      • Cannot apply for admin letters or grants of rep
      • Does not inherit under intestacy
    • Children
      • Born out of wedlock/CP is rarely relevant
      • Unmarried Parents should not be treated differently - McLaughlin
      • Only M has auto PR (s.2.2(a))
      • F must acquire PR - s.2.2(b), under s,4 CA 1989
      • Acquired PR can be terminated by the court
      • Children born to a married couple are legitimate - although term is rarely used
      • Both parents have auto PR - s.2(1) CA 1989
      • PR cannot be lost, unless adopted, but can be restricted
    • Finance
      • Application for financial orders
      • Pre-nuptial contracts are not binding - Granatino
      • Tenancies can be transferred - Sch.7 FLA 1996
      • Child support is available - CSA 1991or CA 1989
      • No financial orders for adults
      • Contracts can be binding - Sutton v Mischon
      • tenancies can be transferred - sch.7 FLA 1996
      • Child support is available - CSA 1991 or CA 1989
    • Partner's Children
      • De Facto step-parent
      • No restriction on marriage
      • Can only acquire PR if named CAO or SGO
      • Can only apply for CO without leave, if the child has lived with them for 3 years or have consent or PR
      • Financial support is not required by law
      • Legal step-parent
      • Restriction on marriage - sch.1(2) and sch1(2) MA 1949
      • Can acquire PR by agreement of court order - s.4(a) CA 1989
      • Right to apply for CAO without leave - s.10(5)(a) CA 1989
      • Financial support - MCA 1973 and CA 1989
    • Death -Claims
      • Claim can be auto made under the inheritance - Provisions for Family and Dependants Act 1975
      • Will be given what is reasonable, whether or not it is needed for maintenance
      • Can be made auto under the Fatal Accidents Act 1976
      • Bereavement benefits may be available
      • Claim can be made if lived for 2 years immediately prior to death
      • They will be given what is reasonable to maintain - Webster
      • Claim under FAA if  lived together for 2 years - Kotke v Saffarani
    • Taxation and Pensions
      • Gifts on death are exempt from inheritance tax
      • CGT exempt for inter vivos gifts
      • Married couples tax allowance
      • Married couple tax break
      • State Pension based on spouse's contribution
      • No special tax benefits
      • Cannot claim state pension based on their contribution

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