Amidst the thrill of moving in together and taking that next big step with your partner, it’s crucial to understand the legal implications of cohabitation in the UK. Unlike marriage or civil partnerships, cohabiting couples often find themselves in a legal grey area, with fewer protections and rights than they assumed. This is where a cohabitation solicitor can offer essential advice and guidance.

In this blog, Rachel Macwilliam from our Family Law team, explores the legal rights (or lack thereof) for cohabiting couples, helping you navigate this important aspect of your relationship confidently and clearly. Knowing your legal standing can prevent potential disputes and ensure a smoother, more secure cohabitation experience.

Do you know your legal position as a cohabiting couple?

According to CNCB, almost 90% of the world lives in countries with falling marriage rates, with people opting to move in together before they even consider getting married. For many, marriage or civil partnerships simply isn’t what they want. However, if you decide against formalising your relationship, it’s important to know that cohabiting couples’ separation rights offer very little protection.

Cohabiting couples separation rights

When separating, things can get pretty tricky regarding admin (to put it mildly). Or, if your partner dies and you have not formalised the relationship in a legal sense, you won’t have the same legal rights as a spouse or civil partner. For example, if your name isn’t on a property deed, you have no right to continue living there, even if you had lived in that property together for years.

For cohabitees, this legal grey area can be a daunting and stressful place to be. This is why it always pays to discuss your case with an experienced family law and cohabitation solicitor.

No automatic inheritance for cohabitees

Should your partner die before you, an unmarried partner, you would not have access to their pension or other assets. Even if your partner made a Will leaving the property to you, you would not be exempt from paying inheritance tax as a spouse would. If your partner doesn’t have a Will at all, you would not benefit under the intestacy rules.

What about common law marriage?

Our team of family solicitors in Truro is often asked about common-law marriage. The term “common law marriage” describes a relationship between two long-term partners living together but not in a civil partnership. But what does it actually mean in the context of matrimonial law? Well, to put it bluntly, it means absolutely nothing.

In 2022, the Women and Equalities Committee commissioned a report entitled “The Rights of Cohabiting Partners.” Worryingly, it showed that 46% of people in England and Wales believed in the myth of common law marriage. This misconception often results in dire consequences, with many people mistakenly believing that they have legal protections that turn out to be non-existent. 

In English law, the concept of a common law marriage simply does not exist. It never has. Referring to a relationship as a common law marriage does not give that relationship any additional rights, and it certainly does not create the same level of rights enjoyed by those who are married or in a civil partnership.

Cohabitee Status

If you are not married to your partner but live together, regardless of the length of your relationship, you are simply cohabitees. You have no special rights over your partner’s assets and are not entitled to maintenance payments except concerning any children you have together. Only the children are the beneficiaries of these payments. 

This directly contrasts with a spouse’s rights, where all assets will be divided equally following a divorce, and their division is governed by the Matrimonial Causes Act 1972. Any joint assets will be dealt with in accordance with property law in force at the time.

The limited legal rights of cohabitees

Although cohabitees’ rights are still limited, options are available, and each case turns on its own facts. In the relatively recent case of Southwell v Blackburn (2014), a cohabiting girlfriend made a small contribution to the purchase price of a property owned in her partner’s sole name and uprooted her children to move in with him. 

As she had acted to her detriment because she was assured she would always be able to live there, the court found that she was entitled to a proportion of the property’s value.

In this case, the crucial points were:

• The cohabiting girlfriend had contributed to the purchase price

• She had been offered long-term security by way of a promise, and she had relied upon this

• She had acted to her detriment by uprooting her children and moving in with him

In the interests of fairness, English law imposed a trust in these circumstances to protect the cohabiting girlfriend’s financial interests in the property. Therefore, where there is a cohabiting relationship with little to no financial ties between the cohabitees (e.g. if the couple rented a property), the likelihood is that there will be very little to argue over in respect of finances if the relationship ends. And both parties will simply walk away from the relationship.

Protecting yourself with a cohabitation agreement

If you are in a cohabiting relationship with complex financial arrangements and do not intend to marry, our advice as a cohabitation solicitor would be to create a cohabitation agreement. This will govern what happens if your relationship breaks down.

The obvious issue with a cohabiting relationship compared to marriage is that cohabitation separation rights are not the same, especially where the finances of the relationship are complex.

Make a Will

For cohabiting couples, making a will is essential to ensure that your partner is legally protected and your assets are distributed according to your wishes. Unlike married couples, cohabiting partners do not have automatic inheritance rights, meaning your partner could face financial hardship or lose a shared home if you pass away without a will. 

A will allows you to specify inheritances, appoint guardians for children, and manage tax liabilities effectively, reducing potential disputes among surviving family members. It also provides peace of mind and financial security, safeguarding your partner’s future regardless of marital status. When it comes to making a will, our family solicitors in Truro can help every step of the way.

Get in touch with a cohabitation solicitor today!

Would you like to discuss a cohabitation agreement as your relationship has broken down? Are you worried about your legal rights as a cohabitee? Our experienced and friendly cohabitation solicitors would be pleased to hear from you. You can email us at info@penderlaw.co.uk or call 01872 241408.