Cohabiting couples have far fewer rights than married couples, particularly when it comes to separation. This means that individuals who have lived with someone for many years and given up a career to care for the couple’s children can be left in a difficult situation if the relationship ends.

Reforms have been proposed, and the government intends to launch a consultation in 2026.

 

Why Is Cohabitation Reform Necessary?

The number of cohabiting couples has increased by 144% over the past 25 years, currently standing at around 3.6 million couples. Meanwhile, the number of marriages continues to decline, with a 20.8% reduction over the 30 years to 2022. Currently, less than half of UK adults are married.

At present, there is almost no provision for a cohabiting partner to claim anything from someone they have lived with, even if the relationship has been lengthy and one partner has put themselves in a financially weaker position by caring for the home and family. This contrasts with the situation for married couples, where these types of contributions are considered equal to contributions made through employment and are taken into account by the court when splitting assets.

People are generally unclear on the rights or lack of rights that unmarried couples have, with only 41% of those surveyed correctly identifying that there is no such thing as a common law marriage.

What Rights Do Cohabiting Couples Have Now?

Property

In some cases, a partner whose name is not on the title to a property may have a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), if they can show that they made a contribution on the understanding they would have an interest in the property.

For example, if they paid the household bills so that their partner could pay the mortgage, the court may hold that they are entitled to a share of the property. However, it is not ideal to have to make a complex legal claim to recover contributions or face the risk of being left without sufficient money to put towards a new home.

Child maintenance

If a couple has children together, then the partner who no longer has the day-to-day care of the children will be required to pay child maintenance. Provision for children is entirely separate from other rules, and parents who were formerly cohabiting with the child’s other parent cannot avoid paying this by remaining unmarried.

Inheritance

Cohabiting partners are not entitled to anything from their partner’s estate under the Rules of Intestacy. This means that if someone is cohabiting, and they want to leave money or assets to their partner, they must make a Will.

If they die without making a Will, the cohabiting partner would have to make a legal claim against the estate. If successful, they would only be entitled to ‘reasonable financial provision’, which might be less than intended. In addition, the process of having to make a claim can be expensive, lengthy, and stressful.

What Changes Are Being Considered?

The law on cohabitation rights has remained largely unchanged since the Burns v Burns case (1984).

The Women and Equalities Committee Inquiry (2021) recommended reforms to give more rights to cohabiting couples, including opt-out schemes for couples who did not want their rights to change.

The government rejected most recommendations in 2022, and paused considerations until a new review on financial remedies law is completed.

Family Law Reform Now is a campaign drawing together family lawyers, academics and other professionals committed to lobbying for change in family law, including cohabitation law.

Their publications and conferences have been platforms on which the following suggestions for reforming cohabitation law have been made:

• A legal framework of rights and responsibilities intended to give individuals legal protection and a fair outcome after separation
• The availability of similar orders to those available in a divorce, although on a different and more limited basis, with the possibility of opting out
• Powers for the courts to adjust property rights
• Power to award childcare costs to allow a parent to work
• The ability for an individual to apply for maintenance for a limited period
• More powers for the courts to make orders to protect children
• Rights for a cohabiting partner to inherit under the Rules of Intestacy
• Treating cohabitants in the same way as married couples for tax purposes on death, so that they have the same exemptions in relation to Inheritance Tax

Proposed Eligibility For Cohabiting Couples’ Rights

To be eligible for the proposed rights, a threshold is likely to be imposed. Suggestions include:

• Couples who have cohabited for a certain minimum period, such as two years, which is the threshold for claims under the Inheritance (Provision for Family and Dependants) Act 1975, i.e. the length of cohabiting time required to qualify a cohabitant to make a financial claim against the estate of a deceased partner who has not left a Will
• Couples who have lived together and have a child together

How Can I Protect My Rights As A Cohabiter?

In the meantime, those cohabiting or considering cohabiting can protect their interests in several ways.

Property

If you and your partner will be sharing a property that is currently in their name, you need to ensure that it is transferred to your joint names. The share held by each partner does not have to be 50:50; it is possible to hold unequal shares.

Inheritance

It is essential to have a valid Will in place, setting out what each of you wants to happen should you die. If you hold your property as tenants in common (rather than as joint tenants) your share of the property will pass under the terms of your Will.

If you do not have a Will, the property will pass under the Rules of Intestacy, and your cohabiting partner would not receive it, as cohabiting partners receive nothing under the rules.

Cohabitation agreement

A cohabitation agreement is advisable if you are likely to be left in a weaker financial position because of your relationship. For example, if you intend to give up your career to raise children, a cohabitation agreement can ensure that, should you and your partner separate, you are entitled to financial support to make up for this.

Contact Our Family Law Solicitors

If you have questions about cohabitation and protecting your rights, contact our family law solicitors today. You can ring us on 0300 303 2071, email us at info@witansolicitors.co.uk or fill in our contact form. We will talk through your situation with you and discuss how we can assist. We have offices in Birmingham, Northampton, London and Wellingborough.