Living together without being married or in a civil partnership (cohabiting) is now a very common choice. According to the Office for National Statistics, the number of people aged 16 and over in England and Wales who are cohabiting has increased steadily, rising from around 5.4 million people in 2012 to approximately 6.8 million in 2022.
For many couples, moving in together is simply the natural next step in a relationship. Rising living costs, changing social attitudes and a desire to avoid formalities all play a part. More couples are also choosing to have children or buy property together without marrying.
Despite this, a widespread misunderstanding still exists: the belief that living together for a certain length of time creates a “common law marriage”. This belief is understandable, but it is wrong. In England and Wales, common law marriage does not exist.
Cohabiting couples do not automatically gain rights over each other’s finances, property or estate, no matter how long they have lived together. This can come as a shock, particularly if a relationship ends or one partner dies.
The risks for cohabiting couples
The law treats married couples and civil partners very differently from those who just live together. Without legal protection in place, cohabiting partners can find themselves in a vulnerable position should the worst happen and a relationship ends, or one person dies.
For example, if one partner dies without a will, the surviving partner does not automatically inherit anything, even after many years of living together. Married partners, however, inherit all or part of their spouse’s estate under the rules of intestacy.
If one partner gives up work or reduces their hours to care for children, they cannot claim maintenance, pension sharing or a share of their partner’s assets in their own right if the relationship ends. Financial claims between cohabiting partners are far more limited and often complex.
There are also practical consequences that are easy to overlook. An unmarried partner may not be recognised as next of kin in medical emergencies. They may not be able to access their partner’s bank account if they die. There are no tax benefits for cohabiting couples, and even gifts between partners can carry inheritance tax consequences.
Housing arrangements can also create uncertainty. If a property is rented and only one partner is named on the tenancy, the other has no automatic right to stay if the relationship ends. Where a home is owned by one partner alone, the other may have no legal right to remain unless they can prove a financial contribution and a shared intention to own the property.
What about children?
Having children together does create legal responsibilities, but it does not change a couple’s status as cohabitants.
Both parents have a legal obligation to support their children financially if they separate, whether or not they were married. Parental responsibility, however, is a separate issue. Fathers only automatically have parental responsibility if they are married to the mother or named on the birth certificate.
If one partner has children from a previous relationship, the other does not automatically gain parental responsibility for them, no matter how involved they are, or have been, in their day-to-day care.
Property ownership and cohabitation
How a property is owned makes a significant difference to what happens if a relationship ends or a partner dies.
Where a property is owned jointly as joint tenants, both partners own the whole property together. If one dies, the property automatically passes to the other, regardless of what a will says.
Where a property is owned as tenants in common, each partner owns a defined share. Those shares do not automatically pass to the surviving partner on death unless this is stated in a will.
If a property is owned in one person’s name only, the other partner usually has no rights unless they can show that they contributed financially to the purchase or mortgage, or paid for significant works with the understanding that they would have a share.
These situations are often very emotional and legally complex, particularly when expectations do not match the legal reality.
Possible reform on the horizon
There has been growing pressure for change in this area for many years. Family law organisations, such as Resolution, have long argued that the law has failed to keep pace with modern family life.
The current Labour government has indicated that it intends to look at reforming cohabitation law as part of a wider programme of family law reform. While there is limited detail at present, and any changes are unlikely to take effect before 2027, proposals under discussion include:
- Limited legal rights for long-term cohabiting couples after a qualifying period
- Greater recognition of financial and non-financial contributions made during a relationship
- Improved protection for partners who have taken on caring roles
- Potential inheritance rights for long-term cohabitees who are not named in a will
Even if reforms are introduced, they are unlikely to match the full protection of marriage or civil partnership. The focus is expected to be on providing a basic level of fairness rather than full equality.
How you can protect yourself as part of a cohabiting couple
Until the law changes, cohabiting couples should consider taking proactive steps to protect themselves.
A cohabitation agreement allows couples to clearly set out how finances, property and responsibilities should be dealt with during the relationship and if it ends. It can cover issues such as who pays what, how property is owned, and what should happen if one partner moves out. While it can feel awkward to discuss, many couples find that having clarity in writing brings reassurance rather than conflict.
Making a will is equally important. Without one, a cohabiting partner has no automatic right to inherit. A properly drafted will allows you to decide who inherits your assets, who can remain in the family home, and who should deal with your affairs. It can also reduce the risk of disputes at an already difficult time.
If you are buying a property together, it is important to understand whether you are purchasing as joint tenants or tenants in common, and to record any unequal contributions.
Planning for the future
The idea of common law marriage is deeply ingrained, but it offers a false sense of security. Living together does not provide the legal protections many people assume, particularly when relationships change or unexpected events occur.
If you are cohabiting, or planning to do so, getting advice early can make a real difference. It allows you to put sensible protections in place, tailored to your circumstances, and gives peace of mind for the future.For further advice please contact a member of our Family law team here: https://gamlins.com/private/family-divorce-solicitor/
