“We live together so we have the same legal protection, don’t we?”

This is a common misconception formed by parties living together and sharing household bills. They wrongly presume that they have the same legal rights as a married couple.

Interestingly, in the last few years, we’ve seen an increase in couples opting out of marriage and preferring to cohabitate.

According to the Office for National Statistics (UK), the proportion of families containing married or civil partnered couples has decreased from 68.6% in 2006 to 66.8% in 2019.

In contrast, the proportion of families containing a cohabiting couple has increased from 15.3% to 18.4%. With such increases in cohabitation, it is important that cohabitating couples can distinguish between the legal rights of married couples getting a divorce and the legal rights of cohabitating couples separating. Fortunately for you, we know a thing or two about this.

What does the law say about married couples?

A party’s matrimonial assets (e.g. the family home) are usually governed by the factors of the Matrimonial Cause Act 1973 (MCA) – namely section 25.

This sets out the factors that the courts will consider in ancillary relief proceedings (finances arising from divorce) and assists the courts in determining how assets are to be divided in the event of divorce (for further reference, please see our blogs on divorce and finances).

Section 25 seeks to ensure that the courts take into account the income, earning capacity, property and other financial resources which each of the parties has, or is likely to have, in the foreseeable future. Under the section, married couples benefit from the provisions of the MCA which allow judges to exercise their direction to come to a financial settlement that is fair to both parties.

What does the law say about cohabiting couples?

It is important to note that the law relating to assets of cohabiting couples is different to that of married couples and, as couples are not married, the provisions of the MCA do not apply.

However, cohabiting couples can enter into a cohabitation agreement.

This is a formal agreement detailing the following:

  • How rent, mortgage or household bills are paid
  • Finances, for example, what happens to joint bank accounts or pensions
  • Property and assets – owned before or bought while living together
  • Arrangements for children
  • Pets
  • Next of kin rights

Cohabitation agreements can be beneficial in protecting an individual’s home rights.

For example, in the absence of an agreement, if one partner moves into a property owned by the other, they will have no automatic right to live there if the relationship ends - even if they have made contributions to the mortgage.

As such, cohabitation agreements prevent situations in which one part is trying to force the other from the property. Furthermore, due to their flexibility, cohabitation agreements can apply to non – romantic cohabitants. However, there are two major points to remember.

Properties outside of the UK

The first of the two points involves properties abroad. If either person has assets outside of the UK, they may need to draft a cohabitation agreement that reflects the law where the asset is based. For example, if one partner owns a house in France, you may need the agreement to reflect French property law.

Wills & cohabitation disputes

The second of the two points is all about wills. Under inheritance provisions, an individual’s estate falls into the rules of the intestacy in the absence of a will. Therefore, an individual who was cohabitating with their partner before they passed away will not automatically inherit their property.

In fact, if a party dies, the property will be equally distributed between their children. In the absence of children, the deceased's estate will be passed to any surviving parents, and then any brothers or sisters.

With that in mind, unmarried cohabiting couples should always consider creating a will.

If you still have questions about cohabitation vs marriage, please know that we’re here to assist. At Specters, we can draft a cohabitation, pre-nuptial or post-nuptial agreement for a fixed fee. This fee will be agreed upfront by a Family Law solicitor who will offer you clear advice on how an agreement can assist you in your current situation and help you in your future.