What are the Legal Implications of Cohabitation?

It is now rare for couples not to live together before marriage and increasingly couples are choosing not to get married at all. While it seems likely that there will be changes to the law on cohabitation in the future, there is currently no legal recognition of a “common law” spouse in England and Wales. 

The decision not to marry therefore has various legal implications: 

• If an unmarried couple has a child, the father does not automatically have parental responsibility (PR). The father must sign the child’s birth certificate or make an application to Court to gain PR. Without PR, the father will not have the right to be consulted about key decisions in the child’s life, such as medical treatment, education, religious upbringing and the child’s name. 

• When an unmarried couple separates, they do not automatically have any financial claims against each other. They may be able to bring claims under the Trusts of Land and Appointment of Trustees Act 1996 if there is jointly owned property, or Schedule 1 of the Children Act 1989 if they have a child, but these claims will be more limited than claims under the Matrimonial Causes Act 1973, under which married couples can bring claims against each other.

• Unmarried partners will not inherit under the intestacy rules and must therefore sign wills if they wish each other to benefit from their assets. Even with a will, unmarried couples will not benefit from the spousal exemption for inheritance tax (IHT). This means that assets passed from one unmarried partner to the other are not exempt from IHT, unlike transfers between married couples or civil partners. If the deceased’s estate exceeds the nil rate band, which is currently £325,000, IHT may be due on the value exceeding this threshold. If the main asset is the home, it can be that this will need to be sold to pay the inheritance tax.

• Unmarried couples must make wills if they wish to nominate each other as executors of their estates. In the UK, an unmarried partner is not automatically considered to be the next of kin and cannot act as an administrator without being named in a will. The right to administer an estate without a will generally goes to the deceased’s spouse or civil partner. If there is no will and no surviving spouse or civil partner, the estate is typically administered by the next of kin, following a specific order of priority.

• If a couple owns property together, it is important to understand whether the property is held as joint tenants or tenants in common. When property is owned as “tenants in common,” each owner has a separate, defined share. If a tenant in common dies without a will, their share of the property will not automatically pass to the surviving co-owner(s) but will instead be distributed according to the rules of intestacy. These rules prioritise certain relatives, such as children, spouses, or parents, in a specific order of inheritance.

A lawyer will be able to explain the legal implications of cohabiting and mitigate some of the associated risks. This may be especially important for couples who have had religious marriages and consider themselves married, but whose marriage is not recognised under English law.

For more information on any of the issues raised in this article, please contact Rebecca Curran, Paralegal in the Family Law Department at SE-Solicitors at rcurran@se-solicitors.co.uk or if your queries relate to wills please contact Aimee Bowles in the Private Client Department at abowles@se-solicitors.co.uk