Cohabitation and your legal rights

Cohabitation is where two people live together in a relationship without being legally married or having entered into a civil partnership. The rise in cohabiting couples has prompted significant discussion about potential legislative change within family law.

The number of cohabiting couples has risen by 144% since 1996, while the number of people living in a marriage continues to decline.

As the law currently stands, those who choose to live together outside marriage face challenges and legal implications that married couples don’t. Cohabiting couples have little protection and their legal status and rights aren’t equal to those of married couples.

Are cohabiting couples legally protected?

There’s a widespread belief that couples who live together for a certain number of years gain similar legal rights to those who are married, often referred to as a ‘common-law marriage.’ This is a myth. No matter how long a couple have lived together, cohabitees don’t automatically acquire rights to each other’s assets.

Cohabiting couples don’t automatically have inheritance rights or the same parental responsibility as married couples. When cohabiting couples separate, they can’t make a claim for a share of the other party’s property, income or pension. Despite this, we regularly meet people in cohabiting relationships who assume they have the right to make such claims.

In relation to the family home, property rights are determined by legal ownership, for example whether the property is held as joint tenants or tenants in common. If a home is owned by one partner, the other may have no claim unless they can demonstrate financial contributions or provide evidence that an agreement was entered into.

Where a dispute arises, an application may be brought under the Trusts of Land and Appointment of Trustee Act 1996 (TOLATA), but these cases can be complex and costly.

While the legal landscape may one day evolve to provide greater protection for cohabitees, the campaign to change the law has been ongoing for more than 20 years without success. The law in England and Wales continues to draw a clear distinction between married couples and cohabiting couples.

Cohabitation agreements and wills

Cohabiting couples can take steps to protect themselves, either at the outset of a relationship or part-way through, by entering into a cohabitation agreement. These documents set out the parties’ intentions regarding property, finances and other matters, such as arrangements for children, in the event the relationship breaks down. If properly drafted, such agreements can carry significant legal weight and provide clarity and security for both parties.

Making a will and keeping it up to date is also crucial to avoid unintended consequences on death. Awareness and planning are essential. It’s vital for those living together outside marriage to understand their legal position and take proactive steps to safeguard their interests.