Essential information for cohabiting couples

Following the recent change of Government and the King’s Speech which outlined the major area of law reform that this Labour Government intended to introduce, family solicitors have been disappointed that there was no mention of reform of the law relating to cohabiting couples in that speech. Partner and Head of Family Law, Noelle Heath, clarifies the misconceptions around the rights of cohabiting couples and outlines the reasons and benefits as to why they should consider entering into a cohabitation agreement. 

Figures released by the Office of National Statistics (ONS) in May of this year confirm that the biggest increase in the type of family units in the UK was seen amongst cohabiting couples, rising from 1.5m in 1996 to approximately 3.6m in 2021. More children are now born to unmarried parents than to married parents (or to those in a civil partnership). 

Over the last decade or so, a number of attempts to include reform and alter the rights and obligations relating to cohabitation have been made but none so far have succeeded.  Whilst it won’t be easy to find a model of regulation that works, one example that is favoured is an “opt out” system which many believe would provide the best balance of individual freedom and legal protection. Under this arrangement, couples who live together for a pre-defined period, say 2 years, would be granted equal rights equivalent to those enjoyed by married couples with the option available to withdraw from the system at any time. 

In the absence of any such reform and with the increase in cohabitation, it becomes more important than ever that those in a cohabiting relationship (whether opposite or same sex) fully understand the implications and legal consequences.  In this country many still assume that there are special rights belonging to a “common law husband” or “common law wife”. This is simply not true. Whilst married couples have obligations to each other, both during and after marriage, cohabitants have very limited rights against each other. On the breakdown of a cohabiting relationship there is no obligation for one party to pay maintenance to the other nor to provide housing for the other and the law falls back on quite unsuitable property principles to decide how any jointly owned property assets should be divided. There are however obligations between cohabitants that flow from having children – the need to support them, maintenance obligations and, depending on the family’s financial position, to provide them with suitable housing and other expenses. These rights do differ greatly from those that flow from a spouse following a breakdown of a marriage and they centre very much around the needs of the child and not an ex-partner. 

Cohabitation Agreements 

In the same way that couples entering into a marriage are often advised to consider entering into a pre-nuptial agreement (PNA) couples thinking about cohabitation, in particular where such relationships involve children or the acquisition of jointly-owned property, would be well advised to consider entering into a Cohabitation Agreement.  

A Cohabitation Agreement sets out the basis on which the couple will fund the joint expenses of their relationship and the basis on which they own any property both during and if relevant after the relationship ends.  It can deal with: 

  • Who will have the responsibility of paying the mortgage or rent; 
  • Will they contribute to a joint account; 
  • Who will pay the main needs and outgoings; 
  • How much each partner will contribute. 
  • How any property owned by the parties jointly should be divided on the breakdown of a relationship (will it be equal notwithstanding that one or the other has been responsible for meeting the mortgage. 
  • In the event of a separation will one partner be able to buy out the interest of the other (if so setting out how this interest might be valued) 
  • How the parties will deal with any debts on separation, joint credit cards/savings accounts. 
  • How the parties will deal with any monetary gifts from their families that have been used jointly. 
  • How school fees, childcare and other expenses relating to the children have been met. 

Inheritance Considerations 

Cohabitation does not convey the same entitlement to inherit from a partner on their death.  Even a long-term cohabitant has no automatic right to inherit property from their partner. The importance of making a will cannot be therefore over-estimated particularly where children are involved. A cohabiting partner left without a will and where the partner whose status is dealt with under the Laws of Intestacy is faced with the unenviable task of bringing a claim under the Inheritance (Provision for Family and Dependents) Act 1975.  Litigation like this following a partner’s death can be both emotionally and financially costly.  

Given the ongoing state of the law at present regarding cohabiting couples, couples can be assisted by taking pre-emptive steps as detailed above to ensure what they want to happen (and consider to be fair) is actually matched by the reality in the event of a split. 

For more information on cohabitation agreements and other services, please contact a member of our experienced family law team. Call 033 3344 9600 or email [email protected].

Author: Noelle Heath, family law.