The Rise of Cohabiting Couples, Their 'Rights,' and Cohabitation Agreements
The 21st century has a more diverse range of familial structures than any previous generation. Gone are the days where the only relationship arrangement was that of husband and wife. Nowadays, it is particularly common for couples to take the form of 'cohabitants.'
You are a cohabiting couple if you and your partner live together, but you are not married or in a civil partnership. The 2022 Office for National Statistics survey on Families and Households in the UK saw marriage rates falling to their lowest on record since 1862, and conversely a rapid growth in cohabiting couples. Since this arrangement is so prevalent now, it is important for cohabiting unmarried couples to know and understand their legal position.
It is a common misconception that cohabiting couples have the same or similar rights as married or civil partners. This is not the case. Although some support has emerged in favour of cohabiting couples being granted similar rights to married or civil partners, many remain opposed, and cohabitants' rights under the current law of England and Wales are non-existent.
Unfortunately, copious amounts of cohabiting couples have found this out in the Courts when attempting to enforce the 'rights' that simply do not exist in their relationship arrangement.
If you are a cohabiting unmarried couple, you should be aware of your differing legal position compared to spouses or civil partners. For example:
- Perhaps the most common myth about cohabiting couples is that of 'common law marriage.' Common law marriage is the prevalent assumption, and misconception, that cohabitation for a certain period of time gives rise to the same legal rights as married couples. 'Living as though you are husband and wife' does not give you the same legal rights as those actually married or in a civil partnership. The only way to get the legal rights that spouses or civil partners are entitled to is to marry or form a civil partnership.
- Cohabiting couples have no legal financial responsibility to one another if they separate, which differs from married or civil partners. Unmarried partners cannot claim spousal support on relationship breakdown, but child support may be payable.
- Cohabiting couples may want to consider getting a cohabitation agreement, which would make things more straightforward in the event of separation. As the basis of a cohabiting relationship is that the couple live together, issues and disputes often arise in relation to property. A cohabitation agreement, also referred to as a living together agreement, is an agreement between unmarried couples which sets out how the couple shares finances while living together. It is extremely important to have a legal document which confirms the agreement of both parties as to how to divide financial assets, debts and property should the relationship fail, or one party pass away.
- Unmarried cohabiting couples have no automatic right of inheritance if their partner dies intestate (that is, without having made a will). Under intestacy rules, spouses automatically inherit the others estate if they were still married or in a civil partnership at the time of death, whereas cohabitants do not. As a cohabitant, you have to apply under the Inheritance (Provision for Family and Dependants) Act 1975 to benefit. For a cohabitee to be eligible to bring a claim under the act, they must have been living in the same household as their partner 'as husband and wife' for at least a 2-year period ending immediately before the other's death. However, the Courts decide this on a fact-specific basis and takes into account several factors, such as the need for financial provision. Thus, the position is uncertain.
- Unmarried cohabiting couples are not automatically entitled to compensation should their partner die at work, whereas spouses and civil partners are, under the Fatal Accidents Act 1976. A cohabitee is only entitled to compensation if they are economically dependent on the other and have lived with them for over 2 years.
