Cohabiting couples have no legal protection under UK law, nor do they share the same legal rights as married couples or civil partners. Gemma Whitchurch, Senior Associate in the Family team at law firm Sydney Mitchell, explains the cohabitation laws in England and Wales.

Cohabitating couples in the UK

According to Office for National Statistics (ONS) data, cohabitation prior to marriage is on the rise. In 2022, the highest levels of cohabitation prior to an opposite-sex marriage were recorded with 9 in 10 couples having previously cohabited. This compares with 59.6% of couples having cohabitated prior to marriage in 1994, the earliest year the data is available.

Further ONS data shows that the percentage of married people has fallen below 50% for the first time, with many couples now choosing to live together without the formality of marriage. In 2023, cohabiting couple families accounted for 18% of couples.

What is a cohabitee?

A cohabitee is anyone living with their partner but who is not married to or in a civil partnership with them. Married partners or those in a civil partnership are automatically legally tied to one another regarding their property and assets. This does not apply to cohabitees and makes things complicated in the event of relationship breakdown or death.

What is a common law husband and wife?

The term common law husband and wife is a widespread misconception. While it is often used to describe an unmarried cohabiting couple, common law husbands and wives do not have the same legal rights and protections as those who are married or in a civil partnership.

It is a myth that cohabiting partners automatically gain the same rights as married couples. They are unable to make a claim for any assets in the sole name of their partner (save for in very limited circumstances in respect of a property). This is regardless of how long they have lived together or whether they have children together.

This can lead to significant legal vulnerabilities in the event of a relationship breakdown, with the financially stronger party being able to walk away without any financial responsibility for the other.

What are the property rights of cohabiting couples?

The property rights of cohabiting couples are governed by outdated principles of trust and property laws. Subject to how a property is owned and how their financial affairs have been regulated throughout their relationship, a couple may or may not have a right to a share of the property if the relationship breaks down.

What are the parental rights of cohabiting couples?

An unmarried father does not automatically acquire parental responsibility for a child upon birth unless he is registered on the birth certificate. If the father does not jointly register the birth with the mother, this can be acquired via a parental responsibility agreement with the mother, or by obtaining an order from the Court.

Unmarried parents, whilst they do not have a financial obligation towards each other after the relationship breaks down, do have a legal obligation to financially support their children. Applications are made to the Child Maintenance Service, or applications for financial provision are made under Schedule 1 of the Children Act 1989.

What happens to the pensions of cohabiting couples?

Pensions are a vital element of marital financial assets during divorce proceedings and can be offset or subject to pension sharing or pension attachment orders.

There is no such provision for the sharing of pensions between cohabiting couples. This can lead to a significant disparity of income in retirement, particularly for the individual who may have sacrificed their career to raise children and/or support their partner.

What are the inheritance rights of cohabiting couples?

If one partner dies without a will, known as intestate, the surviving partner from the couple does not automatically inherit any of the deceased’s assets. Instead, the estate is typically distributed to the deceased’s closest relatives which can leave the surviving partner in a difficult financial situation, and even fighting for ownership of any shared property.

How can cohabiting couples avoid complications?

Cohabitation agreement

Currently, cohabiting couples can take some measures to protect their property interests. Using a cohabitation agreement, couples can regulate their property ownership and how they intend to conduct their financial affairs. Agreements should be reviewed in the event of a change in circumstances, such as a house move or investment into the property.

Wills

Making a will is important to ensure a partner is included in inheritance plans. A will ensures the share of any property or assets is passed on in line with your wishes after death, by including the name of your cohabiting partner.

Declaration of Trust

When a cohabiting couple purchases a home together, a Declaration of Trust can help provide clarity and protection, with the inclusion of all financial matters including regular/ongoing contributions, and plans for the property in the event of a break-up.

Trusts of Land and Appointment of Trustees Act 1996

If cohabiting couples separate and there is a dispute over how much of the property they each own and/or whether the property should be sold and/or whether they have an interest in the property, they can make applications under the Trusts of Land and Appointment of Trustees Act 1996 (commonly known as TOLATA claims). Applications under this Act give courts the power to make orders regulating property ownership, including ordering the sale of a property, declaring the parties’ beneficial shares in the property, and making orders on how the property’s trustees exercise their powers.

What is the future for cohabiting couples?

Whilst there is no current proposed legal framework for cohabitation reforms, many legal experts and advocacy groups are pushing for change to ensure cohabiting couples have access to rights similar to those of married couples with an option to ‘opt out’.

About the author

Gemma Whitchurch is a Senior Associate in the Family Law team at Sydney Mitchell, an award-winning Top Tier Legal 500 firm, providing high quality, partner led services to UK and international clients. Gemma has specialised exclusively in family law since 2008, in particular financial remedy and children’s law. She is a member of Resolution and the West Midlands Resolution Committee.

See also

What are the intestacy rules in England and Wales?

What are the intestacy rules in Scotland?

Find out more

Apply for parental responsibility (GOV.UK)

Children Act 1989 (Legislation)

Trusts of Land and Appointment of Trustees Act 1996 (Legislation)

Images

Adobe Stock

Publication date

19 March 2025

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.