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The number of cohabiting couple families in 2025 was 3.5 million, making up 17.6% of all family types. This has more than doubled in the past 30 years, meaning that modern family structures have evolved. But has the law kept up with the pace of change in society?
What is the ‘common law marriage’ myth?
47% of people in the UK believe (wrongly) that living together creates a ‘common law marriage’ providing protection to parties on separation and death. The reality is that this is not the case, and there are no automatic rights afforded to cohabitees.
When spouses divorce, there is the option to make a full range of financial claims as a result of their marriage – this is not the case for cohabitees. This can cause severe financial problems in situations where there is a significant disparity in the separating parties’ wealth and/or earning power, or where assets are in the name of one party only. This is especially so where they have had children together, and perhaps one party has taken a career break as a result.
Additionally, on death, if a cohabitee dies without a will, their cohabiting partner has no right to any inheritance. The only option is for a qualifying cohabitee to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA) for financial provision on death. This is a costly and time-consuming process and offers limited financial provision – far from what a spouse would receive if their spouse died without a will.
Call for reform
Over recent years, there have been numerous reports on proposals for reform including by the Law Commission and The House of Commons Women and Equalities Committee. Despite this, and the widely accepted view amongst family lawyers that the law for cohabitants is unsatisfactory, the law has remained unchanged.
The launch of The Ministry of Justice’s public consultation this year shows a significant step towards reform by setting out proposals for reform and welcoming views from professionals and the public. Resolution, the organisation of family law professionals, has since published its response to the proposals, largely showing support whilst raising some concerns around the protection that would be offered in practice.
What are the proposals?
The Ministry of Justice’s proposals can broadly be split into two areas:
- Rights for cohabitants on separation; and
- Rights for cohabitants on death.
The proposals are made with the view of providing more protection to cohabitants, whilst protecting the distinct status of marriage. The proposals would be on an ‘opt-out’ basis meaning they would automatically apply to those meeting the criteria, with the option for couples to ‘opt-out’ if they both agree to do so.
Rights for cohabitants on separation
It is proposed that these rights would apply to adults in enduring family relationships who have lived together for three plus years, or who live together and share a child (which would include a ‘child of the family’).
Unlike the “sharing principle” on divorce, there would be no default 50:50 split. Instead, the starting point would be to look at the legal ownership of property, with assets only being divided on a ‘needs-led’ basis. This approach is said to prioritise fair outcomes for children, with the primary focus being the needs of any children (e.g. housing, childcare), and then on the needs of the parties (though these may be linked to the children’s needs e.g. housing, capital and income).
Needs would be assessed more narrowly than divorce with the aim being to ensure each party can secure suitable housing and meet living costs. It is suggested that this would not extend to discretionary needs (e.g. luxury items, non-essential home improvements), even if resources are available. There are some concerns about how ‘discretionary’ needs would be distinguished from essential needs and that this could give rise to increased litigation and it has been suggested by Resolution that courts should instead consider the individual circumstances of the case, as they do with divorce.
The factors to be considered when assessing needs would closely mirror the current s.25 factors on divorce. These include:
- earning capacity
- financial resources of each individual
- any physical or mental disability
- age
- length of relationship
A new ‘compensation’ factor has also been suggested to account for decisions such as one party reducing their working hours to take on childcare responsibilities.
The court would have access to a number of remedies as with divorce (e.g. lump sums, property adjustment orders & pension sharing orders) but there will be a stronger push towards a clean break. This means that maintenance (monthly payments to meet income needs) would only be available in exceptional circumstances (e.g. serious health issues or disabilities) for a defined period and without the possibility of extension.
It is unclear how this would provide adequate provision in practice if, for example, there are limited capital assets but one party has a substantial income. Resolution has suggested that maintenance should be available to facilitate the transition to financial independence.
Parties who do not want to be covered by these automatic rights would be required to ‘opt-out’.
Rights for cohabitants on death
The definition for ‘cohabitants’ would be different for intestacy, to ensure it aligns with the current definition under the IPFDA. This would be a ‘marriage-equivalence’ definition where cohabitees are defined by reference to living in the same household as the deceased, as their spouse, for a continuous period of time.
The minimum period is currently subject to discussion, but it has been suggested by the Law Commission that this should be five years, with a shorter minimum period where there are children (e.g. two years).
The aim would be to adopt a clear and simple model under which qualifying cohabitants receive the same intestacy rights as spouses. Currently spouses receive the entire estate if there are no children, or where there are children, they receive £322,000 plus 50% of the remaining estate.
This would only apply if there was no will – where a valid will is in place this would override any rights to cohabitees on death.
What happens now?
Until any legislation comes into place, the position for cohabitees remains as it is – that there are no automatic rights for cohabitees on separation and death.
While the proposals for reform are a step in the right direction, it is likely they will take a substantial amount of time to come into force, if at all. There is no timescale for when this might be implemented, and no certainty as to what the provision may be.
What can you do to protect your position in the meantime
It is essential that those in cohabiting relationships understand their legal rights and responsibilities and the implications that a separation may bring. Advice is always recommended ahead of key life events, such as moving in together, buying a house, having children, getting engaged or married, and whether a cohabitation agreement, nuptial agreement and/or will need to be put in place to ensure assets are adequately protected in the event of relationship breakdown or death.
For more information and advice tailored to your circumstances, please contact Sarah Green.
Georgia Stephenson
Trainee Solicitor
