Official UK statistics highlight the steady decline in marriage rates by over 70 per cent in the last 50 years. Accordingly, unmarried couples are the fastest-growing family structure. 

The government has long expressed a commitment to change the law for unmarried cohabitees and a consultation is expected in Spring 2026.

Meanwhile, many people are unaware of the risks they are exposed to by remaining outside of marriage’s legal framework if the relationship comes to an end, whether because of separation or death.

The myth of ‘common-law marriage’

In England and Wales, living together does not create any legal status equivalent to marriage or civil partnership. The enduring misconception that cohabitation creates a ‘common‑law marriage’ can therefore lead to a separation and inheritance trap that many are unaware of. When a relationship ends, unmarried partners who feel that they have been left in an unfair position must seek to assert their rights as matters of property, trusts and probate law.

What happens when cohabitants separate? 

On separation, cohabitants cannot seek financial remedies that would be available to them on divorce. Disputes over the couple’s former home can be resolved by making a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). In determining these, the courts may make declarations as to beneficial interests, make orders for sale, and determine who may remain in occupation.

Beneficial ownership is generally presumed to follow the legal title unless rebutted (Stack v Dowden): the onus is on the person who seeks to show otherwise. The courts’ analysis of such claims tends to be focused upon evidence of intention and financial contributions, plus the welfare of any occupant minors and interests of any secured creditors are also considered.

Death and inheritance: the risks for unmarried partners  

Many cohabitants wrongly assume that on their death the survivor will inherit automatically. In fact, cohabitants will only inherit if provision is made for them in a will as they simply are not recognised under the intestacy rules (namely the Administration of Estates Act 1925, which has not been substantively updated in the intervening century). The estate will pass first to a spouse/civil partner (if any) and children, failing which to other blood relatives.

Where the home is in the deceased’s sole name, or where the couple held as tenants in common so that the deceased’s share falls into the estate, the practical consequences can be immediate and severe for the surviving cohabitant. Even joint tenancy of a property, leading to it passing automatically to the survivor is not a universal fix if it does not match the couple’s wider objectives to, for example, factor in children from previous relationships, or there is otherwise a lack of liquidity for the survivor.

A bereaved partner may seek maintenance from the estate under the Inheritance (Provision for Family and Dependants) Act 1975. They will be eligible to make a claim if they lived in the same “household” as the deceased (they do not necessarily need to have the same address) for the two years immediately before death “as if” spouses or civil partners, or as a dependant.

However, the remedy is discretionary, and claims generally need to be issued within six months of the grant being issued. If not handled delicately, survivors can find themselves in adversarial litigation against the deceased’s family at the worst possible time. Alternatively, where the deceased made promises of shared ownership and the cohabitant relied upon these to their detriment, they may be able to succeed with a proprietary estoppel claim.

Planning ahead: reducing risk for cohabiting couples

What can be done to avoid the need for potential claims by cohabitants? Any collective ownership of the home should be aligned to the couple’s objectives, with a conscious choice between joint tenancy and tenancy in common, supported where necessary by a declaration of trust. Provided they are drawn up correctly, cohabitation agreements (unlike pre-nuptial agreements) are legally binding and can reduce ambiguity about what happens upon separation in terms of equity division and who will remain living in the property. They have become increasingly popular among couples buying their first home together, particularly where a family member provides a financial contribution to the purchase.

In the event of a death, a valid will can displace the intestacy rules and allow tailored provision for the cohabitant. Where there are children, this may be by providing the survivor with a life interest in the estate (or part thereof), while preserving capital for any children.

Proactively addressing the issues which arise from cohabitation requires careful consideration of the options and a multi-faceted approach.

This article was originally published on eprivateclient website.