What is cohabitation and what are my rights?

In this article we look at what is cohabitation? Do I have legal rights if the relationship breaks down? As family law solicitors, these are some of the questions we get asked on an almost daily basis.

In this article, we’ll cover what cohabitation is, what rights cohabitees have and how a cohabitation agreement could help.

What is cohabitation?

Cohabitation is when a couple are living together but are not married. Normally, couples who live together will have fewer legal rights than those who are married.

You may hear people refer to cohabitees as common-law partners. Contrary to popular belief, there is no such thing as a ‘common-law’ marriage in England and Wales.

Many people mistakenly believe that if their relationship were to come to an end, they would have legal protection that would be very similar to a married couple’s legal protections. This is not the case. As such, many people may be putting their financial situation at risk – and could even lose the roof over their head – should their partner die or their relationship break down.

There is no specific law for dealing with separating cohabiting partners in England and Wales. This means that if a couple who have been cohabiting decide to separate and then get into a dispute, a number of different and often very complex areas of law can come into play.

As a result, it is important to make sure that you fully understand the legal implications of moving in with a partner before living together. An experienced solicitor should be able to advise you on your own individual circumstances.

Moving in with a partner is a big step in a relationship. When considering cohabitation, it’s important to think about how this move could affect your finances.

Contemplating cohabiting with your other half? We examine what counts as cohabitation, how moving in with a partner could impact your finances and what precautions you should consider taking before you take the leap.

A couple are considered to be cohabiting when they live together but are not married.

Cohabitation in this sense refers to two people who are in a relationship and are living in the same property. If you are married, this is not considered cohabitation and different laws apply.

Cohabiting couples generally have fewer legal rights than married couples.

There are specific laws which deal with the breakdown of a marriage (divorce law). However, there are no equivalent laws for cohabitees in England and Wales.

As a result, if the relationship of two people who have been living together breaks down and they cannot agree what should happen to, for example, the property they were living in, they could have to rely on various different and often complicated areas of law to help resolve their dispute.

There is a lot of confusion over cohabitation laws in the UK, with many people believing that cohabitation laws in England and Wales include some kind of ‘common-law marriage’. In fact, this is not the case.

Cohabitation laws: what does cohabitation mean and why does it matter?

When people talk about cohabiting couples, they’re referring to couples who live together but are not married.

Over the last few decades, more and more couples are choosing to move in together either before, or instead of, marriage.

This has led many to assume that there must be cohabitation laws which confer rights, similar to those of a married couple, onto those who choose to live together without getting married. In fact, cohabitation laws in England and Wales do no such thing.

Others assume that there are no cohabitation laws in any form, and moving in together would not affect either party’s legal rights at all. Again, this is not completely accurate.

If you are moving in together, it’s important to understand how your legal position will be affected and how you can ensure that you are both protected, should the relationship come to an end.

Cohabitation laws: the common-law marriage myth

Moving in together does not give a couple the same legal rights as if they were married. There are no cohabitation laws of this kind.

In England and Wales, there are no specific cohabitation laws designed to deal with what will happen to a cohabiting couple’s assets, should their relationship come to an end (as there are with married couples). As there are no cohabitation laws to call upon, in a dispute, other, often complex areas of law may come into play, which haven’t specifically been designed for a cohabitation situation, sometimes resulting in unpredictable outcomes.

What’s more, if one party dies, simply cohabiting with that partner does not entitle the other party to inherit.

Cohabitation laws: the family home

Unlike when a couple are married, if a couple are simply cohabiting and one party owns the family home, only the person who owns the house is entitled to live there. This can put the non-owning party in a difficult position if the relationship breaks down.

However, the other party may have some rights (a portion of money if the house is sold, for example) in certain circumstances, such as if the non-owning party contributed to the mortgage on the understanding that these payments would result in them having a share of the house.

Even when both parties in a cohabiting couple own the family home in joint names, there can be complications. For example, one may not be able to force the other one to sell the house unless a court order is obtained.

Cohabitation laws: consider a cohabitation agreement

Due to the lack of specifically designed cohabitation laws in England and Wales, we would recommend that any couple looking to move in together find out whether a cohabitation agreement would be appropriate for them.

Although cohabitation agreements won’t be right for everyone, they can help to reduce the likelihood of disputes, should the relationship come to an end in the future.

When is cohabitation considered a marriage?

Never. Contrary to popular belief, there is no such thing as a ‘common-law’ marriage in England and Wales. No matter how long a couple live together, their cohabitation does not turn into a marriage. And they will not acquire the same legal protections as a married couple.

What is a cohabitation agreement?

When asking ‘what is cohabitation’, it’s vital to look at how cohabitation agreements work.

A cohabitation agreement is a document which details everything from how household costs will be dealt with to what should happen to any joint assets, if the relationship were to come to an end.

If there are any children involved, the cohabitation agreement can also include what would happen to the children if the relationship between the cohabitees broke down.

Entering into a cohabitation agreement can help to avoid the costly and time-consuming process of court proceedings, should you and your partner separate in the future.

As there are no specific laws in England and Wales which deal with the breakdown of a relationship following cohabitation, many people could be unknowingly putting themselves at financial risk should the relationship come to an end.

A cohabitation agreement is a type of contract in which a couple can detail what they would like to happen, if their relationship should end in the future.

It can include issues such as how much each party pays towards the household bills, what should happen to the property if the couple were to break up and what would happen to any jointly purchased items should the relationship come to an end.

Cohabitation agreements can also cover who will look after any pets in the event of a relationship breakdown.

You can sign a cohabitation agreement at any time – even after you have moved in together. Before entering into a cohabitation agreement, it’s highly recommended that each party seeks independent legal advice.

If you want to enter into a cohabitation agreement with your partner, it’s important that you both seek independent legal advice.

What is cohabitation: the most common disputes

Many disputes between cohabitees who have decided to end their relationship are regarding a property. Sometimes, if a couple jointly owns a property, they may disagree about how the money should be split when it is sold.

On other occasions, if the property is only owned by one party, the other party may claim they should have a share of the property because, for example, they have contributed towards the mortgage.

Possessions are also often disputed. The general rule of thumb is that if you bought something, you would probably own it. However, this is a relatively complex area of law and it is not always that straightforward.

Are cohabitation agreements legally binding?

Although cohabitation agreements are not currently legally binding, a court is much more likely to uphold an agreement of this type, if it has been entered into correctly.

This means each person getting independent legal advice and ensuring that the agreement has been properly drafted.

Normally, if two parties have entered into a cohabitation agreement, they would stand by what they had agreed, so that going to court would not be necessary.

Cohabitation: an important decision

Deciding to live with a partner is not a decision to be taken lightly. Make sure you fully understand how this could affect your finances in the future.

Cohabitation agreements are not suitable for everyone. As always, please seek legal advice tailored to your specific circumstances.

What is cohabitation: summary

Moving in with a partner is a big decision which should not be taken lightly. It is essential to understand the legal implications of such a move before living together.

Cohabitation agreements can help to ensure that, should the relationship break down, you have already agreed how everything will work. However, they may not be right for everyone, so it’s crucial to seek legal advice before deciding whether or not to enter into one.

Contact our expert divorce solicitors for advice on cohabitation arrangements

For more information call our divorce solicitors on 0845 862 5001 or email mail@austinkemp.co.uk.

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