What is cohabitation or ‘living together’ and why is it important?

At present, there is no specific legal definition of what amounts to cohabitation. It can be defined as a living arrangement where a couple in a relationship who are not married or in a civil partnership live together in the same household. This then leads to questions about what is ‘a couple’, ‘living together’ and ‘the same household’. There are no specific legal definitions of these terms either.

A couple

The Department for Work and Pensions counts two people as being in a ‘couple’ if they live in ‘the same household’ and are ‘living together as if they were married’.

The same household

A ‘household’ is considered to be a domestic establishment containing the essentials of home life. However, household and home are not the same and household may refer to people held together by a particular kind of tie, even if they are temporarily separated and not physically in the same home.

To be members of the ‘same household’ means that:

1. two people live in the same house, flat, apartment, caravan or other dwelling place and neither normally lives in another household; and
2. they both live there regularly, apart from absences necessary for employment, to visit relatives, etc.

Examples of two people living in one house but not necessarily living together in the same household include:

1. lodgers or students who necessarily share utilities and who may have an arrangement to share costs for items such as food and cleaning materials; or
2. two people who are married to each other or who are civil partners of each other who separate and refuse to leave the home.

All circumstances must be considered when deciding whether two people are members of the ‘same household’ and all factors must be explored including:

1. the circumstances in which the two people came to be living in the same house;
2. the arrangements for paying for the accommodation;
3. the arrangements for the storage and cooking of food;
4. the eating arrangements;
5. the domestic arrangements such as cleaning, gardening and minor household maintenance;
6. the financial arrangements including who pays which bills? is there a joint bank account? whose name is shown on utility bills?; and
7. evidence of family life.

Even if one or both of the two people own or rent other accommodation, they can still be thought of as members of the same household, particularly where the other accommodation is seldom used. The nature and ownership or tenancy of the accommodation they are living together in, the extent to which rooms and facilities are shared and the ownership of furniture should be considered.

Whilst a person can have more than one house or home they cannot be a member of more than one household at the same time. So, a person cannot be a member of more than one couple at the same time. Where an unmarried person lives with a married couple or couple in a civil partnership, that person cannot be living together as married couple with either as at present the law does not recognise multiple relationships as it does polygamous marriages, in some cases.

Living together as if they were married

The fact that two people, who are not married to each other, are members of the ‘same household’ does not necessarily mean that they are ‘living together as if they were married’.

A relationship may resemble ‘living together as if they are a married couple’ but the facts and circumstances that exist while the couple are living together and what their future plans are should be considered. For example, if the need for care or support is the main reason that the parties are living together in the same household then they may not be considered living together as if they are married and therefore not be a couple.

When considering whether two people are living together as a married couple their relationship is compared with that of a married couple. Marriage is where two people join together with the intention of sharing the rest of their lives. For example, two friends sharing accommodation will rarely have the intention to share accommodation for the rest of their lives but two people who are living together as a married couple would be expected to have the intention of sharing their lives together in the long term.

There is no single template of what the relationship of a married couple looks like but it is a stable partnership, not just based on economic dependency but also on an emotional relationship of lifetime commitment rather than one of convenience, friendship, companionship or the living together of lovers. The characteristics of a marriage which may be present in the relationship include:

1. mutual love;
2. faithfulness;
3. exclusivity;
4. public acknowledgement;
5. sexual relations;
6. shared surname;
7. children;
8. endurance;
9. stability;
10. interdependence;
11. devotion;
12. the relationship of the two people concerning money.

Not all of the characteristics need be present and two people may be treated as living together as a married couple even though the relationship is unsatisfactory or unhappy.

Equally, evidence of a sexual relationship does not, on its own, mean that two people should, or should not, be thought of as living together as a married couple, and similarly two people may be living together as a married couple without having a sexual relationship.

In most marriages it would be reasonable to expect financial support of one partner by the other, or the sharing of household costs. The following questions should be considered:

1. is one person supported by the other?
2. how is the household income shared or used?
3. are their resources pooled in a common fund? Is this all their income or only the money, for example, for shopping or bills?
4. is one person bearing the major share of the household expenses, for example mortgage, rent, gas, electricity? Whose name is on the bills?
5. is there a joint purchase of the property or other mortgage arrangements?
6. have these financial arrangements always been the same or have they changed? If so how and when?
7. if there are no financial arrangements why not?

Two people may still be living together as a married couple even if they keep their finances completely separate. The relationship of two people concerning money has to be looked at in the context of the whole relationship.

Why the two people became members of the same household, how they share their lives now and their future plans should be considered. The stability of the relationship, children and public acknowledgement can help to indicate what their general relationship is, particularly in respect of how they share their lives now. Other evidence may include the existence of a degree of mutual interdependence, of the sharing of lives, of caring and love and of commitment and support. Other important factors include a readiness to support each other emotionally and financially, to care for and look after each other in times of need and to provide a companionship in which mutual interests and activities are shared and enjoyed together.

Important signs of the relationship’s stability include the way in which two people spend their time together and the way that this has changed while they have been together. A couple usually do certain activities together or for one another, such as:

1. providing meals and shopping;
2. cleaning and laundry;
3. caring for the members of the household during sickness;
4. decorating;
5. gardening;
6. caring for children;
7. spending their leisure time together; and
8. taking holidays togethers.

Caring for children can include:

1. two people caring for a child they have had together;
2. a man acting as father to a woman’s children;
3. a woman acting as mother to a man’s children;
4. one of two people of the same sex caring for the other person’s children;
5. two people caring for a child they have adopted together; or
6. two people caring for a child under a court order that gives them parental responsibility.

Two people will be considered living together as a married couple if they have represented themselves openly and unequivocally to others as spouses or civil partners:

1. on the electoral register;
2. in claiming benefits;
3. in obtaining accommodation;
4. if their friends and neighbours accept them as a married couple or civil partners and that the relationship is one of a permanent intent;
5. if one person has assumed the other person’s surname.

Temporary absence of one party to a couple should not automatically be regarded as having stopped living together as a married couple, and this would continue even if there were absences for the following reasons:

1. work;
2. a period as a hospital in-patient;
3. holiday;
4. a visit to a relative;
5. higher education.

Living together as a married couple stops when there is a permanent separation of the couple.

Why is the definition of cohabitation important?

There are a few circumstances where the definition of cohabitation may be particularly important.
If one person in the cohabiting couple was previously married or in a civil partnership and has a financial order from their previous relationship, certain provisions in the financial order may stop on that person’s cohabitation with another person.

For example, the sale of a property which was held in trust or subject to a charge back can be triggered by the cohabitation of the person remaining the property. In those circumstances, it would be in the person excluded from the property’s favour to prove cohabitation, whilst the person who has remained in the property would likely want to argue against the existence of any cohabitation.

In addition, in some cases it is agreed that spousal maintenance or payment towards a mortgage or outgoings on a property should stop after a period of cohabitation by the person receiving these payments.

Cohabitation is also a consideration in variation applications in that it reduces the receiver’s needs because the cohabitee is contributing to towards the household and it is thought to be cheaper for people to live together in a joint household.

Cohabitation may also effect a person’s entitlement to certain benefits.

There may be some circumstances where a dispute over whether or not there is or has been cohabitation, or the date of the start or end of any cohabitation, may be relevant to claims about property ownership under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA or TLATA).

The definition of cohabitation is also relevant if one cohabitee passes away in respect of the other cohabitees entitlement or eligibility to seek provision from their estate. Subsection 1(1A) of the Inheritance (Provision for Family & Dependents) Act 1975 (The Inheritance Act) which provides:

“This subsection applies to a person if … during the whole of the period of two years ending immediately before the date when the deceased died, the person was living – (a) in the same household as the deceased, and (b) as the husband or wife of the deceased.”

So, a cohabiting claimant must prove that for at least two whole years ending immediately before their partner’s death, they were living in the same household and ‘as the husband or wife of the deceased’.

The case of Re Watson (Deceased) [1999] considered how the court is to regard whether two people were living together ‘as husband and wife’. The court should ask itself whether considering normal perceptions and in the opinion of the reasonable person, it could be said that the two people were living together as husband and wife not ignoring the multifarious nature of martial relations, that there is not a ‘one size fits all’ approach to be applied to relationships, and that each case will turn on its facts.

The case of Churchill v Roach [2003] set out the issues and factors to be considered by the court when decided whether a couple lived together as husband and wife.

Judge Norris stated there would be:

• elements of permanence
• a consideration of the frequency and intimacy of contact
• an element of mutual support
• consideration of the degree of voluntary restraint upon personal freedom which each party undertakes; and
• an element of community of resources.

Judge Norris clarified that “none of these factors of itself is sufficient, but each may provide an indicator.”

Cohabitation in Scotland

Scotland has specific legislation to protect cohabitants’ interests when they separate which is governed by the Family Law (Scotland) Act 2006.

More information about cohabitation in Scotland.

As can be seen above, the definition of cohabitation can be contentious and there are certain circumstances where it can be particularly relevant. If you are in any of the situations above and trying to either prove that your ex-partner is cohabiting or show that you are not in a cohabiting relationship, please contact one of our specialist family lawyers.