Living together before marriage, or instead of it, has become increasingly common across England and Wales. Statistics show that cohabiting couples are now the fastest-growing family type, with their numbers increasing by over 25% in the last decade. Conversely, marriage rates have steadily declined. Despite this significant shift in modern relationship dynamics, the law has unfortunately not kept pace.
One of the most common misconceptions legal professionals encounter is the belief that couples who live together are protected by “common law marriage”. The reality is very different. In England and Wales, there is no such thing as a “common law husband or wife”. Regardless of how long a couple has lived together, cohabiting partners do not have the same legal rights as married couples or those in a civil partnership. Understanding these differences is crucial, particularly when a relationship ends or when a partner dies.
The Core Legal Disparities
Marriage establishes a specific legal framework that allows spouses to make financial claims against one another if the relationship breaks down. Under this framework, spouses are entitled to make financial claims against each other until a Clean Break Order is granted by the Court, which can include applying for Pension Sharing Orders and/or seeking spousal maintenance. Furthermore, the legal process of ending a marriage involves formal divorce proceedings. Marriage also provides housing protections, such as the ability to register a Homes Rights Notice to protect the right to remain in the family home, even if a spouse is not named on the title. There are also significant protections in the event of death, as married couples benefit from the rules of intestacy, meaning a surviving spouse will inherit most or all of the estate if a partner dies without a Will.
In contrast, cohabiting couples do not have access to these same legal remedies. Unmarried partners generally cannot make financial claims against their partner for capital following a separation, except in limited circumstances involving children. They are also unable to claim a share of their partner’s pension or apply for spousal maintenance. Unlike the formal divorce process, cohabiting couples simply end the relationship by separating with no formal legal requirements. Critically, they have no automatic right to remain in a property if they are not the legal owner and do not automatically inherit from their partner under the rules of intestacy. If a cohabiting partner dies without a Will, the survivor may need to make a complex and uncertain court application under the Inheritance (Provision for Family and Dependants) Act 1975.
Financial Consequences and Court Discretion
These legal differences can create serious financial consequences, particularly where one partner sacrifices their career to care for children or manage the family home. For example, a stay at home parent in a cohabiting relationship might find themselves with no entitlement to their partner’s pension (even if they paused their own career), no eligibility for spousal maintenance and potentially no claim to the home if they are not a legal owner. This stands in stark contrast to separating spouses, where the Court recognises both financial and non-financial contributions made during a marriage, including raising children and supporting a partner’s career.
When married couples divorce, the Court has wide discretion to divide assets fairly under the Matrimonial Causes Act 1973. While the starting point is a 50/50 division of matrimonial assets, the Court focuses on achieving a fair outcome based on the couple’s specific circumstances. If there is a justification to depart from equality on the basis of needs, this often “trumps” equality. The Court evaluates several factors, known as the Section 25 factors, which include each party’s income, earning capacity, assets, savings, debts and financial responsibilities. Crucially, the needs of children under 18 are the Court’s first priority, often influencing housing arrangements. Other considerations include the length of the marriage, the age and health of the parties and their respective contributions to the marriage, such as childcare, homemaking and managing the household.
Distinguishing Assets and Seeking Protection
The Court also distinguishes between matrimonial assets, such as the family home, pensions and savings built up during the marriage and non-matrimonial assets, such as inheritances or assets owned before or after the marriage. However, even non-matrimonial assets can be included in a settlement if required to meet needs.
For those who do not plan to marry, it is still possible to protect one’s legal position. A Cohabitation Agreement is a legal contract that clarifies which assets are joint, which remain separate and what should happen if the relationship ends. It can resolve specific issues such as whether a partner gains an interest in a property, how mortgage contributions are treated and how investments should be divided. To be legally enforceable, such an agreement should be prepared by a solicitor with both parties receiving independent legal advice, and signed as a Deed by both parties. Ultimately, taking proactive steps like putting an agreement in place, preparing wills and clarifying property ownership can provide vital reassurance for both partners.
T: 029 2034 2233
E: Enquiries@wendyhopkins.co.uk
Author: Chloe Dixon
Published: 13.03.26