Whilst the vast majority of couples are living as married couples in Britain, cohabitation, as an alternative to marriage, has continued to grow in the UK over the last ten years.  There is a declining trend seen in the numbers of the population who are married and an increasing trend in the population that are cohabiting. The latest figures from The Office of National Statistics (ONS)   show that cohabiting couple families are now the second-largest family type at 3.5 million (18.4%). 

Many people are living happily together as cohabiting couples in the UK but labour under the impression that they have "common law" rights over shared property and money that are similar to those of married couples.  This belief can erupt as an unwelcome time bomb when an event such as separation or the death of one party should occur as, in fact, there are no such legal protections for individuals living as a couple but not married or civil partnership.  In such a circumstance there is very limited legal protection for the separated or remaining partner to rely on.

The Covid-19 pandemic and the widespread loss of life has compelled many people to recognise that they should make absolutely sure that their loved ones are in the best position possible should the worst happen.  The rights of cohabiting couples are quite limited and must fall within certain circumstances to apply.  A father does not share parental responsibility unless he is named on the birth certificate of any children of the relationship. Only the mother has automatic parental responsibility. Therefore in the event of separation or death of the children's mother, a man may find that he is not legally able to be involved in the upbringing or any decisions made in connection to these children.  However, even if a parent does not have parental responsibility for a child there is an obligation for the non-custodial parent to contribute to the support of their child.

Finances are another area where a surviving or separated cohabitee may experience difficulties; everything from pensions to funds in a joint bank account need to be addressed.

Annah Cheatham, an associate in Giambrone's family team, points out "it is vital that a couple consider how a property to which both parties have contributed is able to be fairly shared between them on death or separation to ensure there is a degree of security extended where there is a financially weaker party" she further commented "a decision of the court in 2004 where, on separating from her partner, a cohabitee was awarded 40% of the house she had shared with her partner despite having paid only 22% of its original purchase price and never having contributed to the mortgage repayments. The case clarified the legal position but only once a beneficial interest has been established, then a court can award a fair share of the property."

A cohabitation agreement will define all-important legal aspects of a relationship

  • How the rent or mortgage or household bills are paid and by whom
  • How joint bank accounts, pensions, property and other assets owned or bought whilst living together are dealt with
  • Arrangements for children of the relationship in the event of death of their parent
  • Pets
  • Selection of next of kin and their rights

Access to pensions and properties that were already owned by one party will need to be dealt with by collaboration with the associated financial organisations.  Any assets situated overseas may require specific clauses relating to the law in the country in which the asset is based.  A cohabitation agreement must be entered into freely and voluntarily by both parties with a comprehensive understanding of the implications, it should take the form of a deed and both parties must sign it and it also should be updated in the event of major life changes.  Annah Cheatham suggests that both parties take separate advice to avoid the suggestion of coercion by a dominant partner.  Each party will be provided with a copy of the cohabitation agreement.

Logically, the next step for a cohabiting couple to take is for both parties to draft wills to further support their position as a couple and their wishes in the event of the death of one partner.  This action may be of greater importance is there are immovable foreign assets, as they may be caught by the frequently rigid laws of succession in the country in which they reside.

Originally published June 29, 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.