In brief
- There is a widespread misconception that cohabiting couples acquire rights by virtue of their cohabitation under the current law.
- This article considers several of the misconceptions about cohabitation and the rights of couples who live and have children together.
- The consultation on the reform of rights for cohabitants at the end of a relationship has now launched.
According to a 2022 report by the Women & Equalities Committee, nearly half of the population mistakenly believe that "common law marriage" exists in England and Wales. The report found that 46 per cent believed cohabitants living together formed a common law marriage and that rose to 55 per cent for cohabitees with children. In fact, there is no such thing in this jurisdiction.
On 5 June 2026, the Government began a consultation on strengthening protections for cohabitants at the end of their relationship. The consultation will look at how the law can protect cohabitants, who face financial difficulties when relationships end and on the death of one party.
With cohabiting couples being the fastest growing family type in England and Wales, it is important for individuals to know their legal rights as cohabitees, as opposed to being married or in a civil partnership. This article looks at the current law.
Top misconceptions surrounding cohabitation
- Common law marriage: There is no common law marriage in England and Wales. Cohabitation doesn't provide the same rights as a marriage or civil partnership. This is also the case for couples with children.
- Having children creates rights to personal financial support: Cohabiting parents' rights on separation are limited to financial provision for children by way of statutory child maintenance and claims for financial provision for the child's welfare under Schedule 1 of the Children Act 1989. The financial provision available is designed primarily to benefit the child, rather than the parent.
- Contribution to property equals ownership: The individual named on the title deeds of a property is the legal owner. Cohabiting couples do not have automatic ownership rights to a property that is not in their name even if they have contributed to it or lived in it for a long time. There are potential claims that can be made in some circumstances under the Trusts of Land and Appointments of Trustees Act 1996(TOLATA), but these are rights arising under property law, rather than being rights arising by virtue of the couple's cohabitation.
- There is an entitlement to pension sharing: If a cohabiting couple separates or one of them dies, there is no automatic entitlement to their partner's pensions and the rules of each pension scheme will need to be considered.
- There is an entitlement on death: If a partner of a cohabiting couple dies without a Will their cohabitee will not automatically inherit their assets, even if they have children. There is, in certain circumstances, an ability to apply to the court for "reasonable financial provision" under the Inheritance (Provision for Family and Dependants) Act 1975.
- There will be an inheritance tax exemption on death: If a cohabitee is left assets under their partner's Will, they will not benefit from the inheritance tax exemption (known as spouse exemption) that married couples and civil partners have.
- Cohabitation agreements are only for wealthy couples: For couples who choose not to marry or enter a civil partnership, a cohabitation agreement can be effective to clarify financial or legal arrangements in respect of finances, property and children.
What can cohabiting couples do for legal protection?
For couples purchasing property together, a declaration of trust can clarify ownership.
For further protection, couples can enter into a legal agreement, a "cohabitation agreement" setting out their respective property rights and what should happen on separation or death. Issues that can be dealt with in the agreements include: payment of outgoings, property interests, payment of maintenance in relation to children. Wider and more personalised terms may also be included but may not be enforceable. Both parties should take legal advice on the terms of any agreement.
Until any changes are brought into law, there is significant risk to a financially weaker cohabiting partner. Many argue it is unfair that there are tax benefits and legal protections in place for those who marry or enter a civil partnership and not those who choose to live together or have children. The law has not kept up with the reality of modern-day relationships.
2026: Consultation on reform of the law on cohabitation
In June 2026, the Government launched a consultation on reform of the law as it relates to cohabitants. The proposals include better protection for financially more vulernable cohabitants on relationship breakdown and provision for a cohabitant in the event their partner dies without a Will. The proposal is that the scheme would be "opt out", permitting individuals who do not wish to create a relationship with financial consequences to agree that the new scheme would not apply to their relationship.
The consultation will run until August 2026. (Parliamentary debate reveals Government’s latest intentions for Financial Remedies and Cohabitation Law Reform / A fairer end to relationships - GOV.UK).
Whatever the consultation produces, wider public awareness is needed as to what the current law is and any future laws. Bearing in mind the scale of the misconception and the potential far reaching consequences, education on the matter and public campaigns are urgently required.
Summary
Financial provision for cohabiting couples on separation is currently limited to dealing with property ownership and financial support for children. The upcoming consultation will finally look at providing more legal rights for England and Wales's fastest growing family: those who cohabit rather than marry or enter into a civil partnership.
How can Mishcon de Reya help?
Mishcon de Reya has specialist family solicitors who advise on the legal issues affecting cohabiting couples, including property, finances and cohabitation agreements. If you want to seek independent and specialist legal advice, please get in touch.