Cohabitation – living together as a couple but not marrying or being in a civil partnership – is the fastest growing legal relationship status in England and Wales as recent figures show the number of marriages falling by 9% per year.
However, not all cohabiting relationships run smoothly, and the consequences of separation are not widely understood, so what should people think about before moving in with a partner?
This article explains the legal rights of cohabiting couples, the risks of separation, and the practical steps couples should consider before moving in together.
Data Shows Marriage is Becoming Less Common
According to ONS data, in 2002, 54.8% of people aged 16+ were married but by 2022, this proportion had dropped to 49.4%. Over the same period, the proportion of cohabitants increased from 9.6% to 12.9% – that equates to around 2.5 million extra people living together in an unmarried relationship.
Meanwhile, over a similar period, there has been an enormous shift in the number of children born inside and outside a marriage. In 2001 around 60% of births were to married parents, but by 2021 only 48.7% were to married mothers and the majority of children were born outside a marriage.
These changing demographics, which look set to continue, have a huge impact when it comes to relationship breakdown given the very different laws that apply to financial arrangements for unmarried couples.
The Myth of the “Common Law Spouse” as a Real Legal Status
The reality is that there is no such thing as a “common law marriage” in England and Wales.
Unfortunately, many people are unaware of this, as the myth of the “common law spouse” remains pervasive. Data shows almost half of adults believe that unmarried couples have the same legal rights as those who are married. Many people only discover this reality after separation or bereavement, when potentially serious financial consequences can arise.
What Are the Legal Rights of Cohabiting Couples?
Financial claims on divorce involve all marital assets such as:
- Properties
- Savings
- Investments
- Company shareholdings
- Trusts
- Pensions
- Income claims by way of maintenance based on a spouse’s need
For unmarried couples, claims are incredibly limited and usually only available for:
- Property ownership
- Financial support for children
In England and Wales there is no overarching legal framework for redistributing assets between cohabiting partners.
Property rights for unmarried couples
The starting point in determining property claims for cohabitants is to:
- Assess legal ownership – who owns the property?
- Is the property in the sole name of one party of the joint names of both?
But this starting point can be overturned if it can be shown that a beneficial interest in a property – essentially the ultimate control of and financial interest in a property – differs from legal ownership.
At this point, parties are forced to descend into the complications of trust law to establish whether a common intention or resulting trust has arisen by way of the parties’ shared beliefs in ownership, financial contributions and conduct towards each other, in order to attempt to rebut the presumption of legal ownership.
Financial support and maintenance
Cohabiting partners do not owe each other a duty of financial support.
Unlike married spouses:
- There is no entitlement to spousal maintenance
- One partner cannot claim ongoing financial support from the other following separation
The only exception relates to financial support for children, which is dealt with separately.
How children change the position
The legal options do not stop there. Alongside these claims in property, there can be claims under Schedule 1 of the Children Act 1989 to provide financial support for any children. This support can cover:
- Housing
- Payment of child maintenance
- School or university fees
However,
- These claims are for the benefit of the child, not the parent
- They do not create wider financial rights between adults
Parental Responsibility
It is also important to understand parental responsibility:
- Mothers automatically have parental responsibility
- Fathers only have parental responsibility if they are named on the birth certificate or have a parental responsibility agreement or order
This can have practical implications following separation.
The Risks of Not Having a Cohabitation Agreement
1. Costs
As well as being complex, these disputes have the added factor of being extremely risky from a costs perspective as, unlike when dealing with finances on divorce, the presumption is that the loser in any proceedings will pay the costs of the winner.
2. Inheritance
Cohabiting partners do not have automatic inheritance rights.
If a partner dies without a will:
- The surviving partner does not inherit under the intestacy rules
- The estate passes to relatives set out by law, regardless of how long the couple lived together
A surviving cohabitant may be able to bring a claim against the estate in some circumstances, but outcomes are far from guaranteed. Making a will is therefore crucial for cohabiting couples. Read our guide on intestacy rules for when someone dies without a will.
3. Pensions and benefits
Unmarried partners do not automatically benefit from:
- Workplace or private pensions
- Death‑in‑service benefits
- Life insurance policies
These benefits are usually paid based on nomination forms or expressions of wish, not marital status. Cohabiting couples should ensure all nominations reflect their current intentions.
Expert legal advice is therefore absolutely crucial, not just in the aftermath of relationship breakdown but at the point of commencing cohabitation. A well-drafted Cohabitation Agreement can prevent rancour, stress and costs down the line, acting as an insurance policy against future legal proceedings.
What to Discuss Before Cohabiting
Before you decide to take the plunge on cohabitation, here are some of the things to consider and discuss with your partner:
- If buying together: choose joint tenants or tenants in common and record the intended shares in the transfer deed. If shares are unequal or you want clarity, consider a Declaration of Trust setting out your financial stake in the property.
- If one of you already owns the home: agree whether the non-owner will contribute to the mortgage, renovations or other costs and whether those contributions are intended to give them any financial stake in the property.
- Discuss what happens on separation: will the property be sold or will you set out a mechanism for one of you to buy the other out? How will the property by valued? How quickly should this be done following separation?
- Household finances plan: agree how you will split rent/mortgage, utilities, food, transport and other living costs (e.g., 50/50 or proportional to income) and how you’ll deal with one-off purchases.
- Banking approach: decide whether to keep finances separate, use a joint account for bills, or fully merge finances and agree what happens to any joint savings if you separate.
- Debt and credit: disclose material debts/financial commitments; avoid becoming jointly liable (e.g., joint loans, guarantor arrangements) unless you fully understand the risk.
- Tax, council tax, benefits and discounts: check practical impacts such as eligibility for the council tax single person discount and any means-tested benefits once you live together.
- Make or update wills: cohabitants do not automatically inherit under the intestacy rules. Consider wills that reflect your intentions.
- Review beneficiary nominations: pensions, life insurance, death-in-service benefits and investments—update nominations/expression of wishes to match your intentions.
- Insurance and contents: check buildings/contents cover and ensure valuable items are properly insured; confirm policyholders and beneficiaries are correct.
- Children: discuss childcare and financial arrangements. Understand parental responsibility and discuss whether there should be any financial provision for children in the event of separation.
- Cohabitation agreement: consider an agreement setting out everything you have agreed, each of you taking independent legal advice to ensure that the agreement works for you.
- Review points: set a reminder to review arrangements if circumstances change e.g. buying a replacement home, having a child, one partner stopping work etc.
Why a Cohabitation Agreement Matters
Legal advice is often just as important at the start of cohabitation as it is after separation.
A well‑drafted Cohabitation Agreement can:
- Clarify financial arrangements
- Define ownership of property
- Reduce uncertainty and conflict
- Act as an insurance policy against future disputes
Each party should take independent legal advice to ensure the agreement is fair and effective. Legal Advice for Cohabiting Couples
If you are:
- About to start cohabiting with a partner
- Investing in property together
- Ending of a cohabiting relationship
Early legal advice can make a critical difference.
Napthens team of family lawyers can help, regularly advising on:
To make an appointment with an expert to discuss any of this, get in touch today via our contact form.
FAQs
There is no legal status known as a “common law spouse” in England and Wales. Living together for a long period does not give unmarried couples the same legal rights as married couples or civil partners.
No. Cohabiting couples do not have the same legal rights as married couples. Unmarried partners generally cannot make claims for spousal maintenance or a share of assets simply because they lived together.
The rights of cohabiting couples are usually limited to property ownership rights and financial claims relating to children. The law does not automatically divide assets between unmarried partners following separation.
Not automatically. A cohabiting partner’s entitlement depends on the facts of the case, including ownership, financial contributions and any evidence of a shared intention regarding the property.
No. If someone dies without a valid will, their cohabiting partner does not automatically inherit under the intestacy rules.
A cohabitation agreement is a legal document that records how a couple intends to deal with finances, property ownership and other matters while living together and if they later separate.
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