Not so long ago, cohabitation was a rarity. It was taken for granted that a committed couple would marry and a whole system of divorce law was built around this presumption, with all the financial entitlements available to the less well-off spouse (pension sharing, maintenance, division of assets) contingent on the central fact that the couple had indeed married.
Meanwhile, society began quietly moving in a different direction. People became less willing to be hidebound by tradition and wanted the freedom to explore and experiment. Couples no longer felt the need to rush into marriage – instead increasing numbers moved in together, taking their time getting to know their partner before deciding whether or not to walk down the aisle.
Cohabitation went from the choice of a small minority to mainstream option in a just a few decades. Of course the traditional choice, marriage, is still well ahead but according to figures recently released by the Office for National Statistics, at least five million adults now live in cohabiting relationships across England and Wales: that’s more than ten per cent of all adults over the age of 16.
Unfortunately that English law has comprehensively failed to keep up. Society always changes faster than the statute books and cohabitation still has no legal status in England and Wales. If the partners separate neither will normally have any financial obligations towards the other.
The “common law wife” is a peculiarly persistent myth: this is the idea that cohabiting gives a woman a legal status equivalent to marriage. But this has never been the case in the jurisdiction of England and Wales – and this discovery has been an unpleasant shock for many cohabitees who suddenly find themselves alone after their partners has died or the relationship has ended.
There are some options open to people who find themselves in this predicament. A cohabitation agreement is a binding legal document in which you and your partner set out how your joint assets and property will be divided in the event that your relationship ends or one partner dies. Death also opens up a second possibility: the surviving partner may be able to make a claim under the Inheritance (Provision for Family and Dependents Act) 1975. This requires the claimant to demonstrate that the deceased person’s will or financial arrangements did not make ‘reasonable financial provision’ for them. If they make their case, the courts can order significant changes to the provisions of the will in order to benefit the claimant.
Cohabitees may qualify if they lived with the deceased person for at least two uninterrupted years prior to the death, in a relationship clearly equivalent to marriage.
In 2016 a woman who had lived with her partner for almost 20 years without ever marrying him successfully made such a claim after his sudden death. Joy Williams was at risk of losing her home to the estranged but still legal wife of her deceased partner, a retired dentist, because he had never updated his will.
She described the discovery that her relationship was not recognised in law as “traumatic”.
So if you are in a cohabiting relationship, it is sensible to seek legal advice as soon as you can so you fully consider the options to you. Don’t get caught out.