Cohabitation Rights

The concept of "common law marriage" — the idea that living together for a certain period of time gives a couple the same rights as married couples — is a myth in England and Wales. It has no basis in current law.

Surveys consistently show that a significant proportion of the UK public believe common law marriage exists. This misconception can lead to devastating financial consequences when a relationship ends or a partner dies, particularly for the partner who gave up work to look after children, contributed labour to renovate a home, or lived in a property owned by their partner.

The legal position is starkly different from the popular belief:

• There is no automatic right to a share of a partner's property — however long you have lived together
• There is no automatic right to a share of a partner's pension
• There is no automatic inheritance right on death without a will — intestacy rules leave unmarried partners with nothing
• There is no right to claim maintenance for yourself (only for children) after a separation
• There is no "home rights" to remain in a property that is in your partner's sole name

Scotland has a somewhat different position under the Family Law (Scotland) Act 2006, which gives cohabiting couples limited claims on separation.

Property rights for cohabitants depend on how the property is owned and what contributions each partner has made:

Jointly owned property:

• Joint tenants: Both own the whole property equally. On death, the surviving partner automatically inherits the whole property (right of survivorship). On separation, each owns 50%.
• Tenants in common: Each owns a specified share (which can be unequal). On death, a partner's share passes according to their will or intestacy rules — not automatically to the other. On separation, each takes their specified share.

Property in one partner's sole name: If you do not own the property but your name is not on the title, you have no automatic right to a share. However, you may be able to claim a beneficial interest through:

• Constructive trust: You contributed to the purchase price, mortgage payments, or improvements with a common understanding (not necessarily spoken) that you would have a share
• Resulting trust: You made a direct financial contribution to the purchase price
• Proprietary estoppel: You were led to believe you would have an interest and acted to your detriment in reliance on that belief

These are complex claims that require expert legal advice and often litigation. The courts look at all the circumstances in detail. The leading case is Jones v Kernott [2011] UKSC 53, which confirmed that courts can infer a common intention to share ownership from conduct.

A cohabitation agreement (sometimes called a living-together agreement) is a legally binding contract between unmarried partners that sets out financial arrangements while they are together and what happens when the relationship ends. It can cover:

• How the property is owned (or to be acquired) and in what shares
• Who pays what bills and mortgage payments
• How bank accounts are managed
• What happens to property and assets if the relationship ends
• Financial arrangements for children

A cohabitation agreement must be:

• Made in writing
• Signed by both parties
• Entered into freely, without pressure
• With both parties having received independent legal advice

Without independent legal advice for each party, a cohabitation agreement is less likely to be upheld by a court if disputed. The cost of having a cohabitation agreement drafted by a solicitor is typically £500–£2,000 depending on complexity — considerably cheaper than litigation if the relationship ends without one.

If you are moving in together, renovating a property together, or making significant financial contributions to your partner's property, a cohabitation agreement or a Declaration of Trust (recording your respective shares in property) is strongly advisable.

When a cohabiting partner dies without a will, the intestacy rules apply. Under the Administration of Estates Act 1925, an unmarried partner receives nothing from an intestate estate — however long the relationship, however many children you have, and regardless of who was financially dependent on whom. The estate passes to the deceased's children, then to parents, siblings, and so on.

However, an unmarried partner can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they were financially dependent on the deceased or the deceased was financially dependent on them, or if they lived together in the same household for at least two years immediately before the death. Such a claim must be brought within six months of the grant of probate and is discretionary — the court will award what is reasonable for the claimant's maintenance.

To avoid this uncertainty:

• Make a will that names your partner as a beneficiary
• Check pension nominations — pension death benefits and life insurance are not automatically paid to an unmarried partner; update nomination forms with your pension provider and insurer
• Consider a joint tenancy on your property if you want the survivor to inherit automatically
• Consider life insurance to protect your partner financially