The legal differences between marriage and living together or cohabitation

In England and Wales there are a huge number of differences between the legal rights of couples who are married or in a civil partnership and those who are cohabiting or living together. Below are some of the key differences to help couples to make informed decisions about their situation and legal position.

What is cohabitation?

Cohabitation is a term used to describe couples who are in a relationship and living together but not married or in a civil partnership and applies to opposite and same sex couples. However, there is no legal definition of cohabitation or living together in England and Wales. 

More information on the definitions of cohabitation and living together.

It has become increasingly common for couples to choose to live together, either for a period of time before getting married or without getting married at all. According to the Office for National Statistics the proportion of people who live as a cohabiting couple has increased from 20.6% in 2011 to 24.3% in 2021.

Does cohabitation give you the same rights as marriage?

Cohabiting does not give you the same legal rights as marriage or civil partnership. Cohabiting couples have far fewer legal rights than married couples or those in a civil partnership. A common misconception is that after couples have lived together for a certain number of years or have children together their relationship will be treated as a ‘common law marriage’. This is known as the ‘common law marriage myth’ and in England and Wales there is no such thing as ‘common law marriage’. Couples will be treated as cohabitees no matter how long they have lived together or even if they have children together.

What are the key legal differences between marriage and cohabiting?

Separating

Cohabitees can separate informally without the intervention of a court. The court has power under the Trusts of Land and Appointment of Trustees Act 1996 to make orders in relation to the cohabitee’s property or assets, and financial provision for children can be made under Schedule 1 Children Act. If the couple have children together then the court does have the power to make orders relating to who the children live with and how they spend their time, (child arrangements).

If a couple wish to formally end their marriage or civil partnership they need to apply for a divorce or dissolution. The court then has the power to make various orders in respect of the finances arising from the marriage or civil partnership. The court also has the power to make orders in respect of who any children live with and how they spend their time.

Money and possessions

Generally, possessions owned by each person before they started cohabiting remain that person’s property. During the cohabitation the person who received, purchased, inherited or was gifted an item generally owns it. Possessions purchased from a joint account will usually be owned jointly.

If a couple in a marriage or civil partnership separate, generally any property, money and possessions owned by either person will be taken into account when deciding a financial settlement. This will include property owned before the marriage or civil partnership or inherited during, and it may be shared, especially if required to meet needs.

Property

Rented property

If a private or social housing tenancy agreement is only in one person’s name, the other cohabitee will usually have no rights to stay in the property if they are asked to leave. Certain orders, known as occupation orders, can allow a cohabitee whose name is not on a tenancy agreement to remain living in a property short term.

If an agreement is reached, a transfer of tenancy can give a cohabitee long term rights to stay in the property.

However, if an agreement about who should remain living in the property cannot be reached then it is the person who is named on the tenancy agreement who will have the legal right to stay there. If the tenancy is in joint names, it will have to be terminated. Therefore, if you are moving in with your partner is it advisable for a tenancy agreement to either be entered into in joint names or for an existing sole tenancy agreement to be converted into a joint tenancy agreement.

Unless a court has ordered otherwise, both married partners have the right to live in the matrimonial home regardless of whose name is on the tenancy agreement. The court has the power to order transfers of tenancy agreements by consent, and if an agreement cannot be reached about who should remain living in the property then the long term rights to the tenancy can be decided by the court in financial remedy proceedings.

Owned property

If a property is owned in one person’s sole name, their cohabitee may have no rights to remain in the house if they are asked to leave. As above, an occupation order may allow a cohabitee to remain in the house for a short period of time, however, a cohabitee will only have a legal interest in a property if a court formally recognises contributions they made towards the property.

A non-owner cohabitee may be able to establish a legal interest in a property by making a direct contribution to the purchase price, or if there was a common intention by both parties for the cohabitee to have an interest in the property and the cohabitee acted to their detriment on reliance of this agreement. The cohabitee could have acted to their detriment by making financial contributions towards the mortgage or paying for improvements to the property, or by actually working on such improvements. If a non-owner cohabitee thinks they have established a legal interest in a property then they may be able to bring a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TLATA). However, these can be complex disputes, and it is crucial that early legal advice is sought.

If cohabitees are joint owners of a property then they have equal rights to stay in the house. Unless there is documentation setting out the shares in which the property is owned, or one person can prove otherwise, the presumption will be that joint owners own the property in equal shares.

Both parties to a marriage or civil partnership have the right to remain in the matrimonial home until the divorce Final Order, regardless of which person’s name the property is registered in, unless the court has made an order setting out who should remain the house, such as an occupation order. In addition, until the finances arising from the marriage have been decided, neither person will be able to sell, transfer or remortgage the property without the other person’s agreement. If the property is in one person’s sole name then a Home Rights Notice should be registered on the property to prevent the legal owner dealing with the property in any of these ways before a financial settlement or financial court order.

The long term ownership of the property, or how the property should be dealt with, can be agreed or decided by the court in financial remedy proceedings. However, the matrimonial home will be considered a matrimonial asset capable of being shared between the parties regardless of whose name it was purchased in or who made a greater financial contributions to the property and expenses.

Other financial claims

When a couple live together, neither person has a legal duty to support the other financially over and above any child maintenance that may be payable, unless they are parents and there is a Schedule 1 application as detailed below. It is also unlikely that cohabitees will have any claims against their partners other assets, including other property, savings, business or pensions. Voluntary agreements to pay lump sums or maintenance can be made but they may be difficult to enforce.

When a couple are married or in a civil partnership the usual starting point on divorce or dissolution is that everything either person has is available for sharing, regardless of whose name it is in or when it was acquired. In addition, each married partner has a duty to support the other financially if they are not able to support themselves. The court has the power to make a wide range of orders in financial remedy proceedings, including property sale or transfer, lump sum payments, spousal maintenance, additional child maintenance and orders in respect of pensions.

Financial provision for children

Regardless of the status of the parents, child maintenance will always be payable through the Child Maintenance Service.

If a cohabiting couple who separate have a child or children together, an agreement can be reached about additional financial support, or one parent could ask a court to make financial provision for the children under Schedule 1 of the Children Act. This could be for a property or lump sum towards a property, but will usually only be for a limited period of time, normally until the youngest child reaches the age of 18. One parent may also be able to make a claim for certain payments, such as towards housing, school fees, medical expenses and additional child maintenance from the other parent. All such payments must be for the benefit of the children.

Financial claims for children are usually incorporated into the financial claims arising from the marriage or civil partnership, and the needs of the children will always be the courts primary consideration when deciding how finances should be divided between the couple.

Rules of intestacy and making a will

When a couple live together in a property owned as joint tenants and one co-owner passes away without making a will, their share of the property will automatically pass to the other co-owner, whether or not the couple are married.

If a property is owned as tenants in common and one co-owner passes away without making a will, their share of the property as well as half of any joint bank accounts and any other assets in their name, will pass under the rules of intestacy.

Under the rules of intestacy, a cohabitee will not automatically inherit anything from their partners’ estate if they pass away without making a will. If the person who passed away had children, then their estate will be shared equally between their children. If there are no children, then their estate will be shared equally between their living parents and other living relatives if there are no living parents.

As an unmarried couple living together, it is very important that you check and understand how your property is owned, and you will need to make a will if you wish to make sure that your partner inherits from your estate.

If you do inherit money or property from your unmarried partner, then the inheritance tax exemptions which are available to couples who are married or in a civil partnership do not apply.

If a person who is married or in a civil partnership passes away without making a will, property owned as joint tenants and joint bank accounts will automatically pass to their spouse or civil partner. Their spouse or civil partner will then automatically inherit some or all of their estate, depending on whether or not they have children. There are also inheritance tax exemptions that apply to couples who are married or in a civil partnership.

What are the benefits of cohabitation over marriage?

Easier to separate

If there are no children and you are both financially independent, it may be easier to divide your assets if the relationship ends. This is because it is usually clear who owns which assets.

No formalities to start or end

There is no formal process or documentation needed to end a cohabitation relationship, such as a divorce or dissolution if a couple is married or in a civil partnership.

Lower risk of arguing over financial matters

It has been reported that cohabitees are less likely to argue or separate due to financial matters, as they are more likely to consider their own assets and income as separate rather than joint assets and income to be shared.

No court proceedings

In most circumstances, where cohabitees separate there will not be costly and lengthy court proceedings to resolve disputes between them, as the court does not have jurisdiction to resolve disputes about issues such as belongings, bank balances and maintenance, (if there are no children). Any minor disagreements can be dealt with between the couple through solicitors correspondence or in mediation.

No rights to each other’s assets

There are no automatic rights to assets belonging to another cohabitee as there are with marriage or civil partnership. If you are the financially stronger party who has more assets before the relationship starts, or if you are likely to acquire more assets during the relationship, then it may be beneficial for you to remain as cohabitees. Couples who are marrying can protect their assets by entering into a prenuptial agreement.

For more information about prenuptial agreements speak to one of our prenuptial agreement lawyers.

What are the benefits of marriage over cohabitation?

As set out above, there are some key legal and financial benefits to being married or in a civil partnership rather than cohabiting.

Stay at home parents or family carers

If you are a stay at home parent, work part time around caring for children or relatives, or have taken time away from work to care for a child or relative, then any impact on your income, savings and pension will be taken into account if you are married or in a civil partnership. This because on divorce or dissolution there is no distinction between financial and non-financial contributions to a marriage or civil partnership.

Financially weaker person

If you are the financially weaker person because you have ill-health or a disability limiting your ability to work or any other reason, then you will have greater financial protection being married or in a civil partnership rather than cohabiting. This is because the court will take into account many factors, including these, when deciding the division of assets and income on divorce or dissolution. These factors are not taken into account at the end of a cohabiting relationship.

Financial provision on divorce

There are a far wider range of factors that a court will consider and orders that a court can make when resolving finances arising from a marriage or civil partnership than there are available at the end of a cohabitation. This includes that all assets can be taken into account on a divorce or dissolution rather than the limited assets which can be taken into account at the end of a cohabitation.

Death

Marriage or civil partnership offers greater protection if one person passes away without a will. Depending on the circumstances, their spouse or civil partner will automatically receive some or all of their estate. There are also some inheritance tax exemptions available to those who are married or in civil partnership that are not available to cohabiting couples. The most common exemption is the spouse/civil partnership exemption that anything left to a legally registered spouse or civil partner is exempt from inheritance tax.

More information about whether marriage is worth it.

Important questions to consider if you are about to move in with your partner or have been cohabiting with your partner:

1. Who is named on the tenancy agreement?
2. Who owns the house?
3. Who owns other assets?
4. What would happen if our relationship was to breakdown?
5. Would you be able to support yourself financially if the relationship was to breakdown?
6. Do we both have wills which reflect how we wish our estate to be dealt with?

Cohabitation agreements and declarations of trust

Couples can protect their interests and avoid potential disputes and litigation if they reach agreement in advance of or during cohabitation. A cohabitation agreement is a contract that formalises aspect of a couple’s cohabitation and what would happen if they were to separate. It can outline the rights and obligations of each cohabitee towards each other both during the period of cohabitation, if the relationship breaks down, or if one cohabitee passes away.

Cohabitation agreements can:

1. Provide financial protection and security for both parties;
2. Establish responsibility for jointly and individually owned assets including property, pensions and savings;
3. Define provisions for children;
4. Agree how financial obligations such as rent, mortgage and other household bills will be maintained;
5. Offer some certainty for the future.

If cohabitees own a property together which they contributed to in unequal shares, they should also consider entering into a declaration of trust to set out how the property should be shared. A declaration of trust specifically relates to a property and confirms the proportions in which the property is owned and therefore divided when it is sold.

Cohabitation vs marriage when starting a family

Parental responsibility

Parental responsibility is the rights that a parent has to have a say in important decisions about a child’s life, such as medical, education, religion, name, money and property.

If a couple are married or in a civil partnership when their child is born they will both automatically have parental responsibility for the child, regardless of who is named on the birth certificate.

If a couple are not married or in a civil partnership when their child is born, the mother will automatically have parental responsibility for the child. The father will only acquire parental responsibility for the child if they are named on their birth certificate, subsequently marry the mother, enter into a parental responsibility agreement, or by order of the court.

Children arrangements

Whether parents were married, in a civil partnership, living together or not living together, they can make informal agreements for where children live and how they spend their time. If an agreement cannot be reached then either parent can apply to the court for a child arrangements order setting out where the children live and how they spend their time.

More things to consider when starting a family as an unmarried couple.