Living Together, But Legally Protected? The Reality for Cohabiting Couples

More couples are building lives together without marrying or entering a civil partnership. However, many are surprised by how limited their legal rights can be, particularly around property, raising a family and planning for the future.

Despite the growing number of cohabiting couples, one of the most common misconceptions remains that living together creates the same legal rights as marriage. Many people believe that after a certain number of years they enter into a “common law marriage” and acquire legal protections similar to those enjoyed by married couples.

The reality is that no such legal status exists in England and Wales, meaning cohabiting couples remain financially exposed under current law.

For many couples, this comes as a genuine surprise. They may have lived together for decades, bought a home together, raised children and built a life together. Naturally, they assume the law recognises that relationship in the same way it would a marriage or civil partnership. Unfortunately, that is not always the case.

The distinction may seem unimportant until something goes wrong, whether that is a relationship breakdown, a dispute over property, a loss of capacity or the death of a partner. It is at those moments that many people discover their legal position is very different from what they expected.

When Relationships Come to an End

One of the biggest differences between married and unmarried couples arises when a relationship breaks down.

When a married couple divorces, the Court has wide powers to consider the couple’s entire circumstances and determine how assets should be divided. For cohabiting couples, there is no equivalent process. Instead, disputes are typically determined by legal ownership and evidence of each party’s interest in an asset, rather than the wider considerations a court would take into account on divorce.

In practical terms, that means questions often come down to ownership rather than fairness.

The family home is usually the most significant asset. If both parties are named on the title deeds, the position may be relatively straightforward. However, difficulties can arise where a property is owned by one partner despite the other having made substantial financial contributions, such as contributing towards mortgage repayments, funding building works or helping finance the original purchase.

Many couples organise their finances informally. One partner may pay the mortgage while the other contributes towards bills, childcare or household expenses. Both may feel they are contributing equally to the relationship, but that does not necessarily translate into equal legal rights if the relationship ends.

Where ownership arrangements and financial contributions have not been clearly recorded, establishing an interest in a property can become complex and disagreements can quickly become expensive and emotionally draining. 

“But We Have Children Together…”

The Child Maintenance Service can determine child maintenance regardless of marital status of the parents.

Whilst the Court has powers to make capital provision for children, this does not give cohabiting parents the same rights as married couples on divorce. Having children together does not automatically create an entitlement to a share of a partner’s property, savings or pension. Entitlement is restricted and can be limited to a child’s minority.

This can come as a surprise to couples who have spent many years building a family together and understandably assume the law will reflect that reality.

Planning for the Unexpected 

Relationship breakdowns are not the only situation where the difference between marriage and cohabitation becomes important. Difficulties can also arise when one partner dies or loses mental capacity.

For example, a partner may die suddenly without leaving a Will, leaving the surviving partner to discover that they have no automatic right to inherit the home they have shared for years simply because they were not married or in a civil partnership. At an already distressing time, this can create significant uncertainty and financial hardship. In most cases, the surviving partner can go to court and seek a fair share of the deceased’s estate, but this requires the ability to fund legal costs upfront, which may not be affordable. 

Many people assume their partner will automatically inherit their assets or be able to make decisions on their behalf should something happen to them. Whilst certain legal protections exist for married couples and civil partners, cohabiting couples do not benefit from the same automatic rights. As a result, the legal position may be very different from what they expect. 

As lawyers, we often see legal difficulties arise not because people have failed to plan, but because they assumed the law provided protections that do not actually exist.

Has the Law Caught Up?

The short answer is no, although change may be on the horizon.

For many years, family law specialists have argued that the law has failed to keep pace with changing social norms. Earlier this year, the Government launched its consultation, A Fairer End to Relationships, seeking views on potential reforms to the rights of cohabiting couples following separation and death.

The proposals include the possibility of financial remedies for certain cohabiting couples following separation, alongside potential changes to inheritance rights for surviving partners.

However, until any reforms are introduced, the current legal position remains unchanged, and timescales for reform are unknown. Anyone living with a partner should therefore plan on the basis of the existing law.

Understanding Your Position

The law relating to cohabitation can be complex, particularly where property ownership, finances, inheritance or future decision-making are concerned. Many of the issues that arise stem from assumptions about the legal rights that flow from a long-term relationship.

Whilst every situation is different, there are steps that can be taken to provide greater clarity and certainty. Depending on your circumstances, this may include considering arrangements such as a Cohabitation Agreement, Declaration of Trust, Will or Lasting Power of Attorney.

If you have any questions about the issues raised in this article, please do not hesitate to contact myself Deborah Davies, Director in the Family team or our Private Client team.