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Clearing the confusion on cohabitation and your partner’s rights

Cohabitation of unmarried couples is increasingly common across all age categories, rising in 2021 to 24.3 per cent of all people living with a partner (according to the Office for National Statistics).

With this trend looking set to continue, Elaine Collins, Senior Associate at Mander Hadley and family law specialist explains why it is essential to understand the legal rights and protections that apply to such arrangements, especially where cohabiting couples face fewer protections than couples who are married or in a civil partnership.

Understanding the legal details for cohabiting couples

“Unlike married couples, cohabiting partners often find themselves in a legal grey area because the relationship is not legally recognised as official,” says Elaine.

“In many cases, unmarried cohabiting couples do not have the same rights and legal benefits and protections as married couples.”

Elaine points out that unmarried cohabiting couples do not automatically receive:

The right to inherit: without a Will, a surviving cohabitant has no automatic right to inherit any property or assets of the deceased, and assets will pass to a living relative.
Exemption from Inheritance Tax (IHT): The rules on IHT exemption differ depending on the type of relationship that you are in. It is always prudent to obtain IHT advice if you are in a cohabiting relationship and would like your partner to inherit your assets.
Pension benefits: many pension schemes only pay out survivor benefits to a legal spouse or civil partner.
Financial support on separation: on separation, there is no obligation for one partner to support the other financially.

“In the UK, there is no such thing as a ‘common-law marriage’,” says Elaine. “This is a fact often misunderstood, leaving many cohabitants unprotected and vulnerable in the event of a partner’s death or separation.”

Property ownership

“Under a cohabitation arrangement, if one partner dies, property will not automatically pass to the surviving partner unless it is jointly owned,” says Elaine. “However, the degree of control the surviving partner has over the property depends on how the home is owned.”

There are two primary ways to own property jointly: as ‘joint tenants’ or as ‘tenants in common’.

Joint Tenants – In this arrangement, both partners own the entire property together. If one partner dies, the other automatically inherits the other’s share, regardless of any Will. This is known as the right of survivorship.

Tenants in Common – Each partner owns a specified share of the property, which can be equal or unequal shares. Upon the death of one partner, their share does not automatically transfer to the surviving partner unless specified in a Will, but the surviving partner retains their own share in the property.

“For cohabiting couples, being joint tenants offers more security in the event that one partner passes away,” says Elaine.

“Under a ‘tenants in common’ arrangement, if the deceased partner’s share in the property was larger than the surviving partner’s, it could put the surviving partner in a precarious living situation when their partner’s share in the property is passed on to a relative.”

Protecting inheritance

The importance of having a Will cannot be overstated for cohabiting couples.

A Will is a legally binding document that allows the deceased partner to pass on assets, including money, property, belongings and shares/investments, to whoever they like, regardless of whether they are legally related or married to the beneficiary.

“If you cohabit with a partner, you should regularly review your Will to ensure that all the assets you want your partner to inherit are expressly left to them,” says Elaine. “Without a Will, the intestacy rules apply, which often do not favour the surviving cohabitant.”

A cohabitation agreement

In addition to a Will, cohabiting couples can further protect their interests through a Cohabitation Agreement.

“A Cohabitation Agreement can outline arrangements for property, finances, and children, providing clarity and protection for both parties in the event of a separation or death,” says Elaine.

“Based in contract law, this type of agreement can be taken to Court if one party breaches the contract,” she continues. “It can also be relied upon as further evidence of intentions regarding a deceased partner’s estate and support the rights of the surviving partner.”

Seeking support

“For cohabiting couples, understanding their legal position and taking proactive steps to protect their rights is vital,” says Elaine. “This includes considering how property is owned, creating a Will, and possibly drafting a Cohabitation Agreement.”

The legal framework surrounding cohabitation is nuanced and complex, often requiring professional legal advice to navigate effectively.

For further advice on your rights as a cohabiting couple, please contact us and speak to a member of our Family Law team today.

Elaine Collins

Senior Associate

I have spent several years specialising in complex private children matters including situations where one parent lives outside of the UK’s jurisdiction, requiring urgent applications to safeguard children and change of residence.

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