The legal implications of cohabitation v marriage in England

Living together before marriage, or as an alternative to marriage, is now so common that it has become commonplace. According to the Office of National Statistics, there were 3.6 million cohabiting couples in the UK in 2021.

There is a widespread view that cohabitation is no different to getting married and that marriage itself is “just a piece of paper”. This is profoundly incorrect. While the relationship of a cohabiting couple may enjoy a high degree of social recognition, legal recognition is another thing altogether.

Simply put, cohabitation or ‘living together’ confers no legal status. The time-honoured expression of “common law wife/husband” is meaningless. There is no such thing as a “common law wife/husband”. Cohabiting couples have no status at all in law. They are simply two individuals and this remains true regardless of how long they remain together, their living arrangements or whether or not they have children.

Property and finances

Cohabitation, per se, does not confer any rights over the shared home. If the property is owned by one partner and the other partner merely lives in it then their status is that of an invited guest. If, however, both parties contributed financially to the purchase or maintenance of the property, the non-owning partner may be able to make a claim for some benefit in the property under the law of trusts.

If the property is owned jointly by the couple, either as joint tenants or tenants in common, then the property can be sold and the net sale proceeds divided between the parties according to their respective shares.

However, in the case of married couples, a spouse has statutory rights in the property, even if that property is entirely owned by the other spouse.

Similarly, if a cohabiting couple decides to go their separate ways, they have no financial claims against each other. Contrast this with a married couple, where a spouse can make a claim for financial support, capital and/or income, in the event of a divorce. Furthermore, an unmarried partner cannot claim on their partner’s pension pot, whereas a married person can apply for a Pension Sharing Order.

Rights upon death

The position of an unmarried partner upon the death of the other partner depends entirely on whether or not the deceased partner left a valid Will. If the deceased partner left a valid Will which benefits the surviving partner, then that surviving partner will be entitled to those benefits, as would any other beneficiary. If, however, the deceased partner died intestate – died without leaving a valid Will — the rules of intestacy automatically apply. Under the rules of intestacy, an unmarried partner has no standing nor any claim in the deceased’s partner's estate whatsoever.

It is possible for the surviving unmarried partner to make a claim on their deceased’s partner’s estate but only if they can prove that the deceased partner supported them financially while alive. But, as such, unmarried partner’s rights after death simply don’t exist.

For married couples, the situation is completely different. Even if one spouse dies intestate, leaving children, then the surviving spouse will still inherit all the personal property and belongings of the person who has died, and the first £270,000 of the estate and then half of the remaining estate.

In cases where a spouse has died without children, the surviving spouse will inherit the entire estate.

The status of children

The situation of children is something that is not affected by the marital status of the parents. Regardless of whether they are married or not, parents have a legal obligation to care for and maintain their children. An unmarried partner’s rights are the same as those of a married person when it comes to rights of access to their children and to make decisions about the lives of their children.

In cases where unmarried couples with children split up, the situation is identical in every respect to that of married couples who divorce. That is to say, they can agree arrangements for the care of the children between them. If that proves impossible, then both married and unmarried couples can seek mediation and, ultimately, intervention by the court.

As stated above, an unmarried partner is not entitled to any financial support from the other partner but, when they have children, an unmarried partner can claim financial support from the other partner but only on behalf of the children.

Cohabitation Agreements

Marriage, by itself, bestows both rights and responsibilities automatically. Consequently, many unmarried couples opt to regulate their relationship by means of a Cohabitation Agreement. This is a private contract, enforceable at law, by which the parties can agree things like property rights, financial arrangements, everyday living arrangements, care for any children and how these things are to be dealt with if they decide to end their relationship.

If you intend to cohabit with your partner, or you are already cohabiting, and you don’t wish to get married, then it may be wise to consider making a Cohabitation Agreement. This is especially so if children are involved or if one partner is financially weaker than the other. An experienced family solicitor can advise you and discuss the options available.

For further information and trusted legal advice regarding family law, get in touch with our Resolution-accredited lawyers in London at Carlsons Solicitors.