The Cohabiting Family
Society has changed, why hasn’t the law?
By Vyonne Manuel and Stephanie Wells
According to the Office for National Statistics’ data, cohabiting couple families are the fastest growing family type in the UK. With this in mind, one might question why the law is not evolving to provide some protection to cohabiting couples.
Unfortunately within the UK millions of couples believe in the idea of ‘common-law marriage’ and they believe they will be protected if their relationship breaks down. The reality is that the concept of a common law marriage has no legal standing within England and Wales (other parts of the UK are different legal jurisdiction and will not be considered in this blog). There are some areas in which cohabitants have legal rights such as in dealing with the division of a jointly owned property, but these are generally limited to strict non-family law principles and so do not protect in the way a married couple would be protected. When it comes to children, the law offers support in dealing with children born to the cohabiting couple; see our blog ‘The cohabiting family – what happens when there are children involved?’. But when it comes to finances, the support is limited. 
Regardless of the duration of the cohabiting relationship, your legal stance does not change. The court has no general power to share property out between the parties, so it is necessary to look at the wider legal principles to see if anything can be done. Cohabiting parties do not have the rights or obligations enjoyed by spouses or civil partners.
Before couples decide to move in together, the following points should be considered with advice sought on how the couple can enter into a cohabitation agreement.
  • How will property be owned?
  • What should happen with any life insurance cover?
  • Do wills need to be made? 
Once a cohabiting couple split up, the following points are relevant:
  • Neither party can claim maintenance from the other for themself regardless of how long they have been cohabiting for.
  • Maintenance for any children can usually be claimed via the Children Maintenance Service; but it may be necessary to look at whether an application can be made to the court for an order to top up maintenance (which it can do in limited circumstances) or less commonly for an order that funds be provided to house children or cover other unusual expenses. 
  • Ownership of the land will be determined by land law principles and sometimes trusts.
  • Occupation of the home may be obtained by establishing a contractual licence, an occupation order, or a property order in favour of the child under the Children’s Act 1989.
  • Transfer of tenancy orders can be made in some circumstances.
  • Does either or both of the parties need to nominate the other to receive the widows or widowers pension (and does the scheme allow it)?
  • If a cohabiting partner dies without having made a will, the surviving partner may have a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Any children of the deceased may also have a claim.
If you have been or are considering cohabiting and want to understand the situation in more detail, contact our family law team to seek advice on 01462 483 800 or
Advice can be provided in the first instance at a fixed fee appointment. A 1-hour appointment at a cost of £144 inclusive of VAT at the time of writing (December 2017)