Do you know your rights as a cohabiting couple?
The Government is expected to launch a consultation on cohabitation law reform shortly. Do you know your rights currently as a cohabiting couple, if you split up? Did you know there is no such thing as a “common law marriage”?
Read on to find out more about how the law could be reformed and steps you can take to clarify your arrangements, whatever your situation. Please note this article and potential reform applies only to cohabitants who live as a couple.
Scenario 1: You are the sole legal owner of a property and your partner lives with you. You are not married.
The current legal position: If the relationship breaks down you will remain the sole owner and your partner will not be able to claim an interest. There are limited circumstances in which that will change under current legislation.
Scenario 2: You live in a property owned solely by your partner and you are not married.
The current legal position: You would not have automatic rights to claim an interest in the property if the relationship breaks down. In practice, this means that even if you have been in a relationship for many years, if you separate you could be left with no interest in the property that has been your home for a long time.
Your options: In certain circumstances it is possible for the non-owner to acquire an interest in a property if there was an intention to share the legal ownership and the non-owner relied on that intention to their financial detriment. Such claims can be made under the Trusts of Land and Appointment of Trustees Act 1996 (‘TOLATA’), and are complex and based in trust and property law.
Aside from limited property claims, be aware that there are limited other claims that can be brought on separation unless you are married or have children e.g. there is no equivalent to spousal maintenance or pension sharing claims for cohabiting couples.
On death the non-owner may have rights as a dependent to make a claim against the legal owner’s estate. As an owner, you may want to consider making a will to provide for your cohabiting partner.
Scenario: You are buying a home with your partner. You are not married.
What to consider: If you are buying a home together with your partner and you are unmarried, it is important to consider at the outset how you will own the property. This is because if the relationship breaks down whilst you are unmarried, the legal ownership of the property is likely to be determinative of how the property is owned/divided on separation.
To avoid pitfalls, you should think carefully in advance and take property advice about how you intend to own the home (i.e. as joint tenants or tenants in common) and how this will be documented.
If you intend to own the home in unequal shares (e.g. if you are each putting different amounts in, and/or contributing unequally to any mortgage), consider owning the property as tenants in common and entering a declaration of trust to record the percentage split. That way any contributions made are reflected in the legal ownership.
If a property is owned jointly and there is no declaration of trust, then the default is that on separation the value of the property will be divided equally.
Consider entering into a cohabitation agreement to ensure clarity as to the financial arrangements if you separate (and to minimise the prospects of potential claims being brought on separation).
Be aware that married couples have automatic rights to share property on divorce, unlike cohabiting couples (and regardless of the legal ownership). Therefore, irrespective of the legal status quo whilst cohabiting, you should consider entering a pre-nuptial agreement to protect your position on marriage.
Scenario: You and your partner are unmarried and have children together.
The current legal position: If you own a home together, property law determines how the property will be divided on sale in the event of a relationship breakdown. However, a parent’s legal entitlement (or not) to a share of a home they lived in as a family may not provide each parent with sufficient capital to re-house on separation (particularly if one parent never had a legal interest in the family home and has no power to compel a sale).
If a parent cannot meet their housing needs on separation, claims can be made against the other parent for housing and maintenance. Even if a child’s parents never cohabited, claims to house/maintain children can be made against the other parent. This is to ensure that children don’t have a marked disparity in standard of living with each parent.
Under current law, if the relationship breaks down there would not be the full range of financial remedies available to unmarried parents on separation as would be available to married couples on divorce.
However, a financially weaker parent may be able to make a claim against the other parent for financial provision (including housing) for the benefit of the child under Schedule 1 of the Children Act, but this is limited to claiming for property on trust (or other capital claims to meet housing needs) which reverts to the payer when the children reach their majority, i.e. (usually) when they finish university. No claims for outright housing provision can be made, unlike for married families. Additional claims can be brought to benefit a child such as child maintenance and lump sums (e.g. for furniture/school fees etc).
The financially stronger parent may be liable to make such provision, which could involve sale of property to ensure any children are properly housed. Housing arrangements under Schedule 1 of the Children Act can be complex, and may or may not involve the establishment of a trust to house the children. Taking advice early is key as certain structures are more cost effective than others.
Claims against non-legal parents: Very often, separated parents form new households and live with their new partner and the children of their new partner in a blended family. Be aware that limited claims can be made on separation against a non- legal parent unless a couple are married.
Scenario: You live with your partner and are currently unmarried, but intend to marry in the future.
The current legal position: Whilst you are unmarried cohabitees, your rights will be as above for cohabiting unmarried couples.
If you do decide to get married, bear in mind that seamless cohabitation before marriage blends into the length of the marriage which can have an impact on the financial outcome on divorce. This means that a 20-year cohabitation preceding a 2-year marriage would be treated by the court as a 22-year marriage (rather than a 2-year marriage), which would have implications for any financial settlement reached as a result of divorce, where the longer the marriage the greater the financial claims.
If your marital home is owned solely by one partner, and you have a cohabitation agreement, bear in mind that this is unlikely to be upheld if you later marry. Married couples have automatic rights to share property however the property is held, unlike cohabiting unmarried couples. A court has power to change the legal ownership of a home on divorce. If you are getting married, you should be aware that the legal landscape will change on marriage and may change again on divorce. You should therefore consider a pre-nuptial agreement to protect your position if the relationship ends.
Scenario: You and your partner are moving to the UK and will live together. You are an unmarried couple.
The current legal position: You should bear in mind that the law in respect of unmarried couples in other parts of the world can be very different from England and Wales. Whilst you may have protections / rights where you lived before, this will not be the case here.
If you have a cohabitation agreement already in a country outside of England and Wales, consider taking English family law advice before relocating as your previous cohabitation agreement may not be upheld here. Equally, if you did not have a cohabitation agreement, it may be worth having one in England and Wales to protect your position both now and if the law changes.
How might the law change in England and Wales?
The Government is going to consult in spring 2026 on how best to strengthen cohabitants’ rights. This might follow the models of other countries whereby if cohabitees meet certain criteria, financial remedies may be available on the breakdown of a relationship.
The eligibility criteria may be based on the length of the relationship. When reform has been looked at previously in this country, it has been suggested that where a couple has a child there should be no minimum length of cohabitation to qualify for legal protections, and if no child they should cohabit for 2+ years to qualify. In Ireland, unusually couples are required to live together for 2 years to be eligible to bring a claim even if they have children or 5+ years with no children. Scotland has had its own framework of rights and responsibilities for unmarried couples since 2006 and the law there doesn’t focus on a minimum length of cohabitation to be eligible, but the nature of the relationship.
In terms of what rights should be available to anyone who meets the eligibility criteria, the Government may decide that any cohabitation remedies for unmarried couples should be different from those available to married couples on divorce, maintaining the difference between marriage and cohabiting relationships.
Alternatively, some countries such as Australia and New Zealand have a model whereby once a cohabitant satisfies certain criteria, they are treated as though they are a spouse and can bring the same claims at the end of the relationship.
In the future, cohabitants could be able to apply for maintenance to reflect any relationship-generated disadvantage.
How we can help cohabiting couples
While we don’t yet know exactly what any reform will look like, our Family team can help you protect your position now in anticipation of future changes:
A cohabitation agreement can help clarify the arrangements between you as an unmarried couple. If you already have a cohabitation agreement, you may need further advice if the law is changed in this area.
If you plan to get married, a pre-nuptial agreement can provide clarity and protection for both parties avoiding potential disputes later down the line.
If a cohabiting relationship with your partner has broken down, seeking advice early is key. We can advise you in relation to cohabitation disputes including TOLATA claims and, if you have children, Schedule 1 claims.
If the law is changed so that any new scheme automatically changes the rights you expected to have unless you “opt out” of the new legislation, we will be able to advise you as to how changes in the law may affect you and how to protect your position.
In addition to providing family law advice, our residential property team can advise you in relation to how a property you may be buying is owned. Our private client team can assist you with making a will (especially important given the lack of legal status unmarried couples have, meaning that the estate would bypass the surviving partner completely if the deceased partner hadn’t provided for them under a will; it is also important to consider aspects like rights under the deceased’s pension, nominations in respect of death in service benefits, life insurance etc).
