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In England and Wales, cohabitation refers to couples living together without being married or in a civil partnership. Despite the common misconception of "common law marriage," cohabiting couples do not have the same legal rights and protections as married couples or those in a civil partnership yet, according to a survey undertaken by Resolution, nearly half of unmarried couples to not know they lack certain legal rights in the event of their relationship ending.
There is no legal definition of living together, but couples can formalise aspects of their status by drawing up a legal agreement called a Cohabitation or Living Together Agreement. These agreements outline the rights and obligations of each partner towards each other. In terms of property ownership, cohabiting couples can be joint tenants or tenants in common, and should have a declaration of trust to formalise how they share their property if they own it in unequal shares. However, not all cohabitees jointly own their home – in some cases, only one of them is the legal and beneficial owner of the property leaving the non-owner in a very precarious position in the event of the relationship ending. Cohabitation Agreements are advised to protect the interests of each partner in the event of a relationship ending however, the reality is that many cohabitating couples do not have such agreements in place and must rely on the limited protection offered by current laws.
The current legal position in respect of unmarried couples has an impact beyond family law – cohabitees do not have the same rights or protections as those of a married couple for succession purposes. If one partner dies without a Will (intestate), the other partner will not inherit the deceased’s estate unless they are named as a beneficiary in the deceased’s Will or they own the asset as joint tenants. However, even in these cases, the surviving partner would still be liable for inheritance tax.
Cohabitees do not have the same tax reliefs as married couples either. Under current rules, gifts during lifetime and on death are exempt if made between married couples but no such relief is available for unmarried couples. On divorce, married couples benefit from tax relief on the transfer of matrimonial assets as part of the divorce settlement, whereas unmarried couples do not.
For many years, family law practitioners and other organisations such as Resolution have been campaigning for better protections for unmarried couples. The Law Commission published a report in 2007 in which various reforms were recommended but in 2011 the Government confirmed it would not take those reforms forward. In October 2023, Shadow Attorney General, Emily Thornberry, announced that the Labour Party intended to review the law relating to cohabitation with a view to introducing reform. Although reform is by no means guaranteed, Labour’s announcement gives us hope that real change will take place, and that unmarried couples will get far more protection than they currently have, although it would be even better if they had the same protections as couples who are married or in civil partnerships.
For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.Back to Law Articles