Across England and Wales, family life is changing. More couples are choosing to live together without marrying or entering into a civil partnership, making cohabiting couples the fastest-growing family type in the UK. While many couples see cohabitation as a practical, flexible alternative to marriage, the law has not kept pace with these social changes. Many unmarried couples remain unaware of the legal risks they may face if their relationship breaks down or one partner dies.
The Growth of Cohabiting Couples
According to the Office for National Statistics (ONS), the number of cohabiting couples in the UK has increased significantly over recent decades. Many couples choose cohabitation for personal, financial or cultural reasons. Some view marriage as unnecessary, while others prefer to postpone marriage until later in life.
However, choosing not to marry can have significant legal consequences that are often overlooked. Despite the growing prevalence of cohabiting relationships, the legal rights for unmarried couples remain substantially different from those available to married couples and civil partners.
The Myth of "Common Law Marriage"
One of the most persistent myths in family law is the belief that couples who live together for a certain number of years become "common law spouses".
In England and Wales, no such legal status exists.
No matter how long a couple has lived together, they do not automatically acquire the same rights as married couples or civil partners. This misconception can leave individuals exposed when relationships end, particularly where one partner has reduced their working hours, given up career opportunities or become financially dependent on the other.
Many people only discover the reality when faced with separation, a property dispute or the death of a partner. By then, it may be too late to avoid costly legal proceedings.
So what should unmarried couples be considering to help minimise disputes in the future?
Cohabitation Agreement
A cohabitation agreement is a written, signed document, often signed as a deed in front of witnesses that records the financial arrangements between a couple who live together but are not married or in a civil partnership. It can also set out what should happen if the relationship comes to an end.
A cohabitation agreement may cover:
- Ownership of property.
- Mortgage and household contributions.
- Savings and investments.
- Responsibility for debts.
- Ownership of significant assets.
- Arrangements for occupation of the home if the relationship ends.
- Procedures for selling or transferring jointly owned property.
When properly drafted and entered into freely, with both parties understanding its implications and ideally receiving independent legal advice, a cohabitation agreement is likely to help reduce disputes arising should the relationship breakdown.
Property Rights for Unmarried Couples
Property is often the most valuable asset a couple owns and one of the most contentious issues following separation.
Ownership will usually depend on factors such as:
- Whose name appears on the legal title.
- Whether the property is owned jointly or solely.
- The existence of a declaration of trust.
- Evidence of the parties' intentions regarding ownership.
Where a property is owned in one partner's sole name, the other partner may still be able to establish a beneficial interest through trust law principles. However, this often requires complex evidence concerning common intention and detrimental reliance. Such claims can be expensive, uncertain and heavily dependent on the facts of the case.
For this reason, many lawyers recommend that cohabiting couples clearly document ownership arrangements and financial contributions from the outset by entering into a cohabitation agreement and/or declaration of trust, where appropriate.
Finances and Financial Protection
Unlike married couples, unmarried partners have no automatic right to claim financial support from one another following separation.
When a marriage ends, the courts have wide powers to redistribute assets and make maintenance orders where appropriate. Those powers do not apply to cohabiting couples.
As a result, a person who has become financially dependent during the relationship may have very limited remedies if the relationship breaks down. This can come as a surprise to many couples who assumed they had acquired rights through years of living together.
A cohabitation agreement can help manage this risk by recording how finances are organised and what should happen to particular assets if the relationship ends.
Schedule 1 Claims for Children
Although unmarried couples do not have the same financial remedies available on divorce, there can still be financial claims where children are involved.
Under Schedule 1 of the Children Act 1989, a parent may be able to apply to the court for financial provision for the benefit of a child. Depending on the circumstances, the court can make orders relating to ‘top-up’ child maintenance (this is only in limited case), lump sum payments, school fees and the provision of housing for a child during their minority.
In many cases, any property provided under a Schedule 1 order will revert to the paying parent once the child reaches adulthood or ceases tertiary education. As a result, while Schedule 1 can provide important financial protection for children, it does not create the broad financial claims between adults that are available when married couples divorce.
Inheritance and Death
Inheritance is another area where the legal position often surprises cohabiting couples.
If someone dies without a valid will, their unmarried partner does not automatically inherit under the intestacy rules in England and Wales, regardless of the length of the relationship.
A surviving cohabitant who lived with the deceased in the same household as if they were spouses or civil partners for at least two years immediately before death may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. However, such claims can be costly, stressful and uncertain, and there is no guarantee of success.
For this reason, cohabiting couples should consider making professionally drafted wills alongside any cohabitation agreement to ensure their wishes are properly recorded.
What Happens If There Are No Legal Arrangements?
Where couples separate without any formal arrangements in place, disputes commonly arise over:
- Ownership of the family home.
- Savings and investments.
- Household contents.
- Financial contributions made during the relationship.
- Responsibility for debts.
Resolving these disputes frequently involves complex property and trust law rather than the broader fairness-based principles that apply during divorce proceedings. The outcome may therefore be very different from what one or both parties expected.
This is one reason why cohabitation agreements are becoming increasingly popular. They can provide clarity, reduce uncertainty and minimise the risk of costly litigation.
The Future of Cohabitation Law
Calls for reform have continued for many years, highlighting the gap between the growing number of cohabiting couples and the limited legal protections available to them.
Recently the government published its consultation, ‘A Fairer End to Relationships’. This included exploring potential reforms to address the financial consequences of relationship breakdown and death for unmarried couples, with some of the core features to potentially include:
- Creating rights and protections for eligible cohabitants on separation (with this being less extensive than divorce law).
- Claims being limited to adults in committed, romantic relationships who have lived together for at least 3 years, or who live together and share a child.
- A 2 year time limit after separation to bring a financial claim.
- Protections to apply automatically to cohabitants who meet the eligibility criteria, with the option for couples to opt out of the framework if they choose.
- The starting point being each person keeps what they legally own departed from only where it is necessary to meet an individual’s defined needs.
- Children’s needs to be the first consideration.
- A clean break should be achieved wherever possible.
- Extending rights to qualifying cohabitants to inherit automatically where their partner dies without a will subject to meeting a definition and minimum duration period.
- Rights of qualifying cohabitants to administer their partner’s estate.
- Removing the qualifying time period for cohabitants to apply for financial provision from a deceased’s estate where they share a child.
However, at the time of writing, England and Wales do not have a comprehensive statutory scheme that provides cohabitants with rights equivalent to those available on divorce.
As a result, the current legal position remains largely dependent on property law, trust law and individual legal arrangements.
Conclusion
As more couples choose cohabitation over marriage, the gap between social reality and legal protection remains significant. The widespread myth of common law marriage continues to leave many people vulnerable, particularly in relation to property ownership, finances, inheritance and separation.
For anyone entering into a cohabiting relationship in England and Wales, understanding the legal rights for unmarried couples is essential. Seeking advice from experienced cohabitation agreement solicitors and putting in place a carefully drafted cohabitation agreement can provide clarity, reduce conflict and help protect both partners' interests should circumstances change in the future.
While cohabitation offers flexibility and reflects the way many modern relationships develop, it is important that couples understand what the law does and does not provide. Taking proactive legal advice before issues arise can help avoid misunderstandings and ensure both parties have greater certainty about their future.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
