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Cohabiting couples: if there is no such thing as the common law marriage then where does that leave a cohabitee if their relationship breaks down?

Nov 20, 2017   ·   4 minute read

The latest Office for National Statistics report, Families and Households in the UK 2017, reveals that cohabiting families are the second largest type of family unit, and the fastest growing. There are more than 6 million people living in unmarried relationships. Statistically that represents about 17% of all families in the UK. Despite the statistics the law hasn’t caught up with the growth in cohabiting couples .Behind the figures what is worrying is that most people aren’t aware that cohabitees have very limited legal protection. It is assumed that cohabitees have the same legal rights as married couples but that’s not correct. A campaign for a change in the law for cohabitees is being spearheaded by Resolution, the national organisation of family lawyers.

There is a need for a campaign because the myth of ‘common law marriage’, gives lots of cohabitees a false sense of financial security. Under current family and property law it’s possible to live with someone for decades and even to have children together and then at the end of the cohabiting relationship to end up with nothing. A married husband or wife, in contrast, would expect to receive at least half of all the family money and property as well as a share of the pensions and potentially maintenance. The lack of marriage certificate can have a huge impact on the financial settlement and outcome, especially in situations where one parent has given up or reduced their work to raise a family and stay at home to be a house husband or wife. This type of family contribution is recognised in divorce law but not in cohabitation and property law.

Ten years ago, the Law Commission recommended giving legal rights to cohabiting couples. The organization, Resolution, has called for Government to recognise the rights of unmarried couples who live together and the Cohabitation Rights Bill, if brought into law, will give some rights to cohabiting couples. The Bill is now in the early stages of being considered by Parliament. Brexit may mean that this Bill and the rights of cohabiting couples will remain on the back burner.

So where does that leave the 17% of all families in the UK who are in cohabiting family units? As the news headlines continue to be dominated by the Brexit divorce negotiations I suspect it will mean that the majority of cohabitees will remain in ignorance of their rights or lack of rights if their cohabiting relationship breaks down.

What can you do? If you are planning to buy a house with a partner or are going to move into your partner’s existing house then it is vital to get legal advice on drawing up a cohabitation agreement. That is the case whether or not you are paying towards the house deposit or plan to make a contribution to the monthly mortgage payments. A cohabitation agreement is a binding contract which will set out the division of assets (including the house if appropriate) and financial support in the event that the relationship breaks down. These agreements provide some certainty and security.

If you are already in a cohabiting relationship, with or without children, then get legal advice. I say this because, in my view, it is best that people know where they stand legally if their committed relationship were to break down. Hopefully that won’t happen but, it is better to know than assume that you will be ok as you are a ‘’common law husband or wife’’. With advice an agreement could be drawn up so that neither one of you would have to rely on complicated property and trust law if you later separate from a cohabitee. Furthermore, with legal advice, you may discover that claims can be made against a property, even if it was bought in your partner’s sole name. That is because, under existing property and cohabitee law, so much depends on a couple’s individual and property circumstances.

To ask any questions about family law and the law on cohabiting relationships or for advice on the drawing up of a cohabitation agreement please call me on +44 (0) 1625 728012 or contact me by email at