How does the Law treat Cohabiting Partners?

There is no statutory legal definition of what cohabitation means in law, but in the context of partners – it’s where two people are living together in a relationship. It is important to understand that, contrary to popular opinion, there is no such thing as ‘common law marriage’ in UK law: you are either legally married (or in a civil partnership) or you are not.

Cohabitation has been interpreted widely by the courts in various cases over the years, to include:

• A couple live together as if they were spouses or as civil partners
• Members of the same household
• A relationship where a couple shares expenses
• Sexual relationships
• Relationships publicly known
• Relationships were children have been conceived

The typical relationship of cohabitation is where a couple live together as spouses but without the legal status of a marriage or civil partnership. We look briefly at the legal consequences between cohabitation, and marriage/civil partnership.

If a couple are married, or are in a civil partnership, they share a mutual duty to provide for one another with financial support.  However, cohabiting partners generally have no such mutual duty to provide for each other financially – either during their relationship or if the relationship ever breaks down.

Under section 30 of the Family Law Act 1996, spouses and civil partners have automatic ‘home rights’, without the need for either partner to apply to court. These home rights give both partners the right not to be evicted from the family home during the relationship or separation – even if only one partner legally owns the property.

These rights can be exercisable against a third person if the property concerned is registered with HM Registry, and the interest in the property is registered as either a land charge or with a notice on the Land Register. 

Cohabiting partners, on the other hand, do not have automatic home rights. However, they may apply for an ‘occupation order’ under the Family Law Act 1996 giving them home rights equivalent to matrimonial home rights.

Spouses and civil partners are subject to the general law of property during their marriage/ civil partnership.  The courts have a wide discretion to order the sale or transfer of a property on the divorce or dissolution of the relationship depending on the length of the marriage, and other factors including the needs of the parties.

If one partner owns the home, it may be possible to establish a claim to a share of the property if you contributed significant amounts towards the home, such as a large deposit, or payments towards the mortgage or renovation costs.

In addition, there are no tax reliefs or exemptions available for cohabitees that spouses and civil partners do enjoy.

On the death of a spouse or civil partner, the surviving spouse or civil partner automatically inherits the deceased’s estate (including any property) under the statutory rules of intestacy, in the absence of a valid will.

Unfortunately, the surviving partner of a deceased cohabitee has no such automatic right to any inheritance if their late partner died intestate. However, they may well be able to successfully make a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. The surviving partner making a claim will have to show that they lived with the deceased for at least two years immediately prior to the death of their partner.

Cohabitants can guard against the risk of potentially expensive and lengthy court action of this nature by making an effective will to provide for their partner.

The Cohabitation Rights Bill in the UK is currently being debated in the UK Parliament, though it has been making slow progress. If it is eventually passed, long-term cohabitees will be entitled to at least some greater level of legal rights and protection.