There has been a growing trend for many years for couples in England and Wales to cohabit. And the number of people cohabiting may have risen further recently if couples living separately decided to move in together during the Covid-19 lockdown as suggested by the deputy chief medical officer for England, Jenny Harris. She said that couples should “test the strength of their relationship” by either staying apart or moving in together during the lockdown.

A significant number of couples may have taken a snap decision to fast-track their relationship to the cohabitation stage as a result of the Covid-19 lockdown. Senior Associate Voirrey Ward  and Partner Matthew Humphries, looks at the legal implications to consider if these new arrangements become permanent.

Can cohabitation lead to a “common law marriage”?

No. This is a widespread myth. There is no such thing as a common law marriage in England and Wales regardless of the duration of the relationship.

Unfortunately, cohabiting couples, with or without children, are not recognised in law in the same way as those who are married or in a civil partnership. They do not have anywhere near the same rights as a married couple on separation or death. There have been several unsuccessful attempts to reform this area of law and imminent change seems unlikely. This is despite Parliament occasionally taking steps in the right direction such as the impending change to the Fatal Accidents Act ensuring cohabiting partners are (in certain circumstances) entitled to claim bereavement damages.

This does mean, however, that couples who have just moved in together have not become “common law spouses” and automatically acquired any legal rights and remedies.


What legal rights do arise on cohabitation?

While the financial remedies available as a result of a cohabiting relationship are limited, some legal rights do arise:

  • A cohabitant who is not the legal owner of the property in which a couple resides may be able to establish an interest in that property if they can prove there was a common intention that it would be shared, and they relied to their detriment upon that shared intention. Such claims are generally established where the non-owning party relies on a promise of a share in a property and have consequently made a financial or other significant contribution to.
  • Where cohabitants have children, the parent with whom the children reside can seek financial provision for a child by way of both maintenance and capital.


Steps couples may wish to take when starting to cohabit

The following points should be considered with a view to minimising misunderstandings should a cohabiting relationship later break down:

  • Communication:
    Be clear at the outset about what financial contributions will be made to the running of a property and whether there is any intention to share the property in the future. For example, discuss the payment of household outgoings, how the cost of the mortgage and any renovations will be met, and whether any financial contributions will give rise to an interest in the property. Do not make promises you do not intend to keep (no matter how informal) as you may later be held to them.
  • Cohabitation agreements:
    This is a legal document setting out the cohabitants’ intentions in relation to property, finances and children, both during a relationship and in the event of a separation. It can be entered into at any time, and cover issues such as how the ownership of a property might be shared, how household outgoings will be met and how jointly acquired assets will be divided and expenses met for children on separation. The aim of a cohabitation agreement is to set out a cohabiting couple’s financial relationship and provide clarity and certainty, with a view to avoiding disputes later.
  • Financial protection:
    Cohabitants may also want to consider other forms of financial protection in the event of the death of a partner, such as life insurance, pension provision and the making of wills.

Matthew Humphries, a partner in the Divorce and Family team, commented: “There remains much misunderstanding among those who choose to live together but not marry of their responsibilities to each other (and their children) in the event of separation and their rights in the event of the death of their partner. It is sensible to seek specialist advice in advance of moving in together no matter how unromantic that may seem.”



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