What is cohabitation?

If you and your partner are living together but not married by choice, you are in good company. Even before wedding restrictions came into force during the pandemic, the UK has seen a sustained decline in the number of marriages of opposite-sex couples over the past 50 years, a trend that has not changed since the introduction of same-sex marriage in 2014.

As a result of this ongoing shift, cohabitating couples have become the fastest-growing household type in the UK.

The changing attitudes to marriage have been one the most prominent social changes in living history. As some religious and economic motives for marriage have significantly evolved, so too have societal expectations and beliefs. The result is a redefinition of modern family life and a greater appreciation of its many forms.

While, for some, cohabitation is an active lifestyle choice based on multifaceted reasons, for others it means they can delay marriage until a more suitable time. An advantage of cohabitation is the opportunity it offers to gauge whether a relationship will be compatible long-term before investing in a wedding (estimated to cost a whopping £31,974 on average in 2019).

It is widely accepted that increasing divorce rates have been an important factor in the rise in cohabitation and fall in marriage rates. Furthermore, cohabitation is often the preference for those who have been married and divorced before and don’t wish to go through the experience again.

However, while attitudes towards cohabitation have evolved, legal policy has not kept pace. As a result, cohabiting couples are at a clear disadvantage if they separate or lose a partner.

Many people believe that sharing a home with a common law partner automatically creates a common law marriage by default, giving them the same rights that they would receive if they were married. However, in the UK the concept of common law marriage is a myth. A common law partnership has no legal validity, regardless of the amount of time you have lived with your cohabiting partner, or whether you have children.

Although ‘cohabitation then separation’ is perceived to be relatively informal, risk-free and a simpler alternative to ‘marriage then divorce’, this is misleading.

While the legal rights afforded exclusively to married couples determine what will happen to property, money, and other assets if a relationship breaks down, or in the event of death, there are currently no equivalent rights for cohabitees under UK law.

Put simply, cohabitating couples have no legal duty to one another while living together, following separation, or even in death. Consequently, cohabiting couples are at greater risk of unwelcome legal outcomes and financial hardship, particularly if they are the more financially vulnerable party. Speak to one of our cohabitation lawyers if you need advice on your cohabitation rights.

The breakdown of a non-married relationship can be complicated despite there being no divorce. There are no guarantees that the outcome will be fair irrespective of the length of time a couple have been together.

Whether you are a couple about to move in together, or you have been cohabiting with your partner for some time, it is well worth considering what would happen if your relationship was to break down. For example:

• Do you have an agreed understanding of what assets belong to whom?
• What will happen to your home if just one party is named in the title deeds?
• With no entitlement to maintenance, how would you support the financially ‘weaker’ party?

Thankfully, there is a way to protect the interests of you and your partner without changing your marital status.

A Cohabitation Agreement (cohabitation contract) is a comprehensive and bespoke contract that formalises what cohabiting couples wish to happen in the event of separation, or death. It sets out mutually agreed plans for jointly and individually owned assets, property, finances, child arrangements, and any other personal arrangements that couples wish to include.

As well as providing security, Cohabitation Agreements are designed to:

• Provide financial protection for both parties
• Establish responsibility for jointly and individually owned assets including property, pensions and savings
• Define provisions for children
• Agree how financial obligations such as rent, mortgage and other household bills will be maintained
• Offer some certainty should the future look different to how you expected.

It is useful to create a Cohabitation Agreement before you and your partner move in together, setting out clear responsibilities and ownership for your property and finances from day one. However, it is never too late. Cohabitation agreements are equally beneficial for unmarried couples that already live together and want to formally record their wishes.

A Declaration of Trust is a legal document that specifically relates to property and can be created during or after the purchase. It confirms the proportions in which two or more individuals own a property or land.

Every Declaration of Trust is different and reflects the unique agreement made between the parties as to how the net value or equity in the property would be split in the event of a future sale, regardless of financial contributions.

The advantage of a declaration of trust is that it provides all involved with certainty by formally recording their agreed wishes and mitigating the risk of future disagreements.

It is also important to make a valid will. Writing a will helps to ensure there is a legally binding process and set of decisions regarding your estate after you die. If you were to die without leaving a will, under the rules of intestacy, unmarried cohabitees do not inherit.

One aspect of separation that is not linked to the status of a relationship is when considering who should care for any children. The law does not distinguish between married and cohabiting couples when determining who any children should live with after separation, and how much time the children should spend with the other parent. This is always determined by what is in the child’s best interests.

Likewise, the non-resident parent will still have to pay child support even though they were not married to the other parent. This is typically dealt with by the Child Maintenance Service.

However parental rights can be different for cohabiting couples. Whereas married fathers automatically have parental responsibility for any children of a marriage, unmarried fathers only gain parental responsibility automatically if they are named on the child’s birth certificate. They biological father can acquire parental responsibility by subsequently marrying the birth mother, entering into a parental responsibility agreement or by applying to the court.