Recent data received from the Office of National Statistics shows that the number of cohabiting couples is growing faster than the number of married couples. Cohabiting couple families have increased by 25.9% over the past decade.
Since same-sex marriage was introduced in March 2014, the number of same-sex married couple families has grown, doubling to 68,000 since 2017. However heterosexual married couple families are decreasing whilst the proportion of cohabiting couple families, both heterosexual and same-sex, are increasing.
New statistics show that one in five people believe that they have a claim to their cohabitees’ property if they have been cohabiting for five years or more. This is incorrect.
Many believe that after living with your cohabitees for a certain number of years you somehow acquire the title of “common law marriage”. But common law marriage is a myth.
Under current law, cohabiting couples do not have the same legal rights as married couples and if separation occurs, there is limited recourse to their ex-partner’s property, pension or financial support.
The respective legal rights of married couples and cohabitees are set out below:
|Marriage/ Civil Partnership||Cohabitation|
|Each party to marriage/civil partnership has an obligation to provide financially for that party in the marriage/civil partnership – both during the marriage/civil partnership and on termination.
|Couples in cohabiting relationships do not have this obligation to provide financially for one another.
|A party to a marriage/civil partnership may seek financial assistance from their spouse/civil partner for the duration of their lifetime, even if the marriage/civil partnership has ended.
|This is not available to cohabitees.
|A party to a marriage/civil partnership gains a specific right of occupation on marriage/civil partnership and the right not to be evicted from the family home these are known as home rights and determine the type of occupation order that may be available to a spouse/civil partner if the relationship breaks down.
|Cohabitees do not have the same specific right of occupation as married couples/those in civil partnerships. It may be possible for cohabitees to obtain an occupation order but different criteria apply.
|A father married to a mother gains automatic parental responsibility for any child of the mother.
A civil partner will acquire parental responsibility for the child of the other civil partner
|An unmarried father only obtains parental responsibility by order of the court or by agreement with the mother unless the child is born after 1 December 2003 and the father is named on the birth certificate – under these circumstances the father will automatically have parental responsibility for that child.
|Spouses/civil partners received favourable tax treatment such a tax exemption on gifts between spouses and certain exemptions on inheritance tax should their spouse/civil partner die.
|Cohabitees do not receive any form of favourable tax treatment
|Should a spouse/civil partner wish to make an application for financial provision from the estate of their deceased spouse/civil partner they are treated more favourably in terms of the factors to which the court must have regard in determining that application.||Any person who before the death of another person was being maintained by that other person may make an application for financial provision from the estate of the deceased but must comply with more stringent criteria.|
As a general rule, when cohabitees separate, they keep the property and assets they own in their sole name. However, those who have children together still have the legal responsibilities of a parent and will be expected, depending on their financial circumstances, to support the upbringing of those children. It may be possible to bring a claim against a former-cohabitee for the benefit of supporting a child you had together, depending upon the circumstances of your individual situation.
If you are married or cohabiting and need advice regarding a relationship breakdown it is always important to seek the advice of a specialist. We offer a free initial appointment and have a dedicated team specialising in all areas of family law ready to advise you.
For further information or to book an initial free appointment call our offices on 01392 421 777 or email the writer of this article, Hannah Porter: [email protected]