According to the Office for National Statistics (ONS), in 1996 there were 1.5 million cohabiting couples. Ten years later, this figure had more than doubled to 3.3 million. However, unlike “marriage” or “civil partnership”, the term “cohabitation” does not denote a legal concept.
Couples of the same or opposite sex who live together without having registered as civil partners or married do not enjoy the same extensive package of rights that those who have formalised their relationship do.
If a cohabiting relationship breaks down, there is little or no legal protection for the couple. For example, there is no power to transfer assets between cohabitants, instead, the rights of the parties are governed by standard principles of property law.
By contrast, the position of children born to cohabiting couples is similar to that of children born to married couples.
Below are some common differences between cohabiting relationships and those that have been formalised and where your rights will differ:
1. To enter or end a marriage or civil partnership, formality requirements must be met. There are no formal requirements to start or end cohabitation.
2. Married couples are under a legal duty to support each other; during a marriage one spouse can seek financial support from the other. There is no obligation for a cohabitant to support the other financially.
3. A father who is married to the mother of his child will automatically obtain parental responsibility but a man who is not married to the mother of his child will not, although they may acquire it by other means.
4. At the end of a marriage or civil partnership, the court has extensive powers to redistribute the couple’s property and make maintenance orders, however, an unmarried partner who, for example, stays at home to care for children, cannot make any claims in their own right for property, maintenance or pension-sharing.
5. When someone dies without a will, a spouse will automatically inherit all or most of the deceased’s estate. If one cohabiting partner dies without leaving a will, the surviving partner will not automatically inherit anything (unless the couple jointly own property).
6. There are tax benefits for spouses but not for unmarried couples.
7. If you are the unmarried partner of a tenant, you have no rights to stay in the accommodation if you are asked to leave. However, each married partner has the right to live in the matrimonial home.
The pressure being placed on the Government for reform of the law is increasing with proposals that the law should provide legal rights to eligible cohabiting couples who separate. Scotland introduced legal rights for cohabiting couples on the breakdown of their relationship in 2006 and some argue that it’s now time for the rest of the UK to catch up.
Our family law team are seeing an increasing number of cohabiting couples that separate and we would urge anyone in a cohabiting relationship to take steps to protect themselves. This could include drawing up a cohabitation agreement which sets out the parties’ intentions for property, care of any children, finances and to deal with issues including maintenance and the division of assets. Couples could also take out life insurance and draw up a will.
We can advise you on cohabitation issues or the breakdown of a relationship, whether inside or outside of marriage.
Read our article The Common Law Spouse: Fact or Fiction?
