According to data released by the Office for National Statistics, using information contained within the 2021 census, cohabiting families are the fasting growing family group in the UK.  Despite this, legislation protecting cohabiting couples has not kept up to date with changes in society. 

Lord Ponsonby of Shulbrede, the Minister in charge of the Family Justice, Marriage and Divorce, has said that a consultation will be undertaken this year to determine what “cohabitation reform should look like.” 

Lord Ponsonby has been clear that “protecting those who would benefit from cohabitation reform is of the “utmost importance” and will not be impacted because of “work, both in relation to marriage law and divorce law” and, of course “the Law Commission’s recently published scoping paper on the law of financial remedies on divorce”.”  

Law reform in this area is long overdue.  The popular perception that after living together for some time and becoming “a common law partner” or being in a “common law marriage” will provide you with legal protection is a myth. Common law wives do not exist!  Many partners in a cohabitation relationship find themselves not properly protected and may experience serious difficulties should their relationship break down. 

The difficulties may relate both to property and finances as well as the care of children from the relationship. 

For couples in a cohabitation relationship, it is important to understand the current position and to take advice on the options open to them to ensure that they protect themselves. 

Protecting Your Rights with a Cohabitation Agreement. 

A Cohabitation Agreement is very similar to a Pre-Nuptial Agreement.  As a document, it sets out how assets should be divided should the relationship break down.  It can also set out, in detail, the plans to be made for any children. 

Cohabitation Agreements may be useful where parties are entering into a new relationship later in life when both have built up their own assets that they wish to protect and pass on to their own children. 

A Cohabitation Agreement can also regulate various areas of the relationship whilst the couple is living together, such as payment of utilities and mortgage relating to their shared home. 

A Cohabitation Agreement is not, however, a legally binding document.  Due to this, there is no reassurance in respect of the reliability of the terms set out should the Agreement be tested in Court. 

Any Cohabitation Agreement must be carefully prepared.  The Agreement is a contract and, therefore, it must meet certain criteria.  It is always sensible to seek advice from a specialist family lawyer to prepare a Cohabitation Agreement.  Such Agreements may be entered into by both opposite and same sex couples. 

Your Property Rights when a Cohabitation Relationship Breaks Down 

The basic principles governing property rights in the case of cohabiting couples is governed by trust and property law, rather than family law, as is the case for married couples or those who have entered a civil partnership. 

The ownership of such property is usually established by examining the legal title, although various arguments can be advanced by the partner not appearing on the title to claim rights over the property. 

It can be difficult to establish property rights, and the burden of proof is on the Claimant (the person making the claim). 

Arguments to try to establish an interest in property (known as a beneficial interest) include the Claimant’s contribution towards mortgage payments or financial contribution towards the initial acquisition or improvement of the property. 

It must be borne in mind that proof of the contributions set out above must be demonstrated to establish a claim.   

If a cohabitee acts to their detriment by placing a reliance on a verbal agreement between the parties that they will have a claim on any property, this is an argument that the Courts will consider.  However, it must be kept in mind that any proceedings will be costly and stressful. 

Married couples, or those in a civil partnership by way of contrast, have access to a simpler process for dealing with the financial consequences of their separation. 

Dealing with Children in the Breakdown of a Cohabitation Relationship 

A parent who is the primary carer of children within a cohabitation relationship is in a different position to that of married parents should their relationship break down.  The former cohabitee has no right to claim property or maintenance from their former partner (save as set out above) and any claim for “maintenance” is limited to child support or, possibly, a claim to deal with the child’s housing needs. 

There is, of course, an obligation on parents (whether married or cohabiting) to maintain and care for their children.  It is important to note that in a cohabitation relationship, any property provided to a parent caring for a child (in this context a house) will revert to the donor parent when the child completes full time education.  In this situation, there may be significant issues for the primary carer parent unless they have made alternative provisions for themselves. 

Regarding parental responsibility, if an unmarried parent’s name is not on the child’s Birth Certificate, they do not automatically acquire parental responsibility. 

Determining the Next of Kin 

Where a couple is cohabiting, often to their surprise, they are not automatically considered as each other’s next of kin.  Therefore, in the case of one partner’s death, the survivor may not automatically inherit assets.  It is, as a result, sensible to obtain specialist advice about making a Will. 

Hopefully, reform of this complex area is imminent and Resolution will (again hopefully!) be able to be involved at all stages. 

The recent article in the Law Society Gazette (25th February 2025) is interesting and well worth a read.  

See Article here