As a family law news site recently noted, none of the three major political parties addressed the long-standing issue of cohabitation rights in their election manifestos, clearly signalling that they do not see it as an issue important to the general public, one that might win them votes. Perhaps they’re right, but those of us on the front line have a different perspective. We regularly see clients for whom this is a very pressing issue indeed. Sometimes they have come through our doors after spending years believing they have rights that do not exist in English law- and other times, it has to be said, we are instructed by clients who are relieved to find they have very few legal obligations to their former partner.

The new normal

If we zoom out, away from individual cases to the national picture, it does not take long to discover just how normalised cohabitation has become. According to figures from the Office for National Statistics, by 2022 living together without marriage had become the fastest-growing family type across England and Wales, accounting for no less than 22.7 per cent of the entire population, or close to 14 million people. Meanwhile, the percentage of people living as a married couple or civil partners dropped below 50 per cent for the first time ever.

Lack of legal status

That’s a lot of households with little to no legal status. As we have already seen, cohabitation is barely recognised in English law. If the relationship ends, in most cases neither party will have any legal obligations towards the other. They can simply pack up their possessions and go their separate ways. Of course, things are different if a couple has children: then the absent parent will be legally obligated to make child supports payments for years, whether or not the couple were ever married.

In English and Welsh law, relationship-based rights depend, for the most part, on marriage. If your relationship ends without marriage:

  • You will not be able to apply for financial support from your ex, even if you have demonstrable need.
  • You will have no automatic right to a fair share of the assets acquired during the relationship, even if these were substantial and you can show you made a significant contribution to your partner’s success (by, for example, managing the household).
  • You will have no automatic right to inherit from your partner if they pass away

Uncertainties

There are some limited workarounds available – for example, under the Inheritance (Provision for Family and Dependents) Act 1975, it is possible to make the argument in family court that you should be allocated funds from an estate because of the nature of your unmarried relationship with the deceased person. But results are very uncertain, and do not compare to the security provided by a marriage certificate.

Yes, you can negotiate with ex and try and reach a private agreement with them, but here too, there are no guarantees. Even if your ex agrees to a fair and reasonable settlement when you first split up, they could always change their mind later if their own circumstances change.

Rights

Some countries do provide cohabitants with a limited number of legal protections – for example Scotland, the Netherlands and France. But England and Wales are not amongst them. There is no common law marriage in this country: news that has come as a shock to many after their relationship has broken down.

For others, of course, this absence of legal protections is the whole point of living with someone. Cohabitation provides most of the good things associated with marriage without the commitments and obligations. That can be an attractive prospect to those who fear they may lose out in a conventional divorce. The English and Welsh family court system has a reputation, after all, for generosity towards wives.

It is not my job as family lawyer to tell anyone what to do: all we here at Major Family Law can do is advise. So, my message to cohabitants would be: make sure your are fully informed. Ensure you know which options open to you and which are not. Don’t get caught out by tired old myths like common law marriage.