Cohabitees on the edge of legality

Claire Yorke, managing associate, Mishcon de Reya

According to a recent House of Commons briefing, the number of opposite sex cohabiting couples doubled between 1996 and 2015.

With over three million cohabiting couples in England and Wales, and increasing numbers of children born outside of marriage or civil partnerships, this is the fastest growing type of relationship. It is the modern relationship.

Despite this, there remain clear legal differences between regulated relationships such as marriage and civil partnerships and unregulated cohabitation.

The Cohabitation Rights Bill, which is in the early stages of passing through parliament, is intended to address the rights of cohabiting couples. Its first reading in the  Lords took place in summer 2015. The second reading, which will see general debate on all aspects of the bill, is yet to be scheduled.


It is important for the law to catch up with societal change in this area; our family justice system needs to ensure that it benefits, protects and respects all 21st century families, including those who do not want to enter into a marriage or civil partnership but still wish to benefit from the legal protection presently  only afforded to those in regulated relationships.

The misconceptions around cohabitees’ legal rights, or lack thereof, are concerning. Couples living together in a stable relationship are often referred to as ‘common-law’ spouses.

This phrase, a hangover from an era when it offered respectability to those who could not afford a church marriage, can in fact be dangerous in providing a false sense of security to cohabiting couples who, in reality, have no legal rights.

Indeed, it is still perfectly possible for one party in a cohabiting relationship to leave that relationship with nothing at all, even when they have given years of their life and contributed to the maintenance of a property.

But while we await The Cohabitation Rights Bill, cohabiting couples can still take some steps to protect themselves.

A cohabitation agreement can set out a couple’s intended contributions during the relationship and in the event they separate. If it is properly drawn up an agreement is contractually binding and enforceable by the parties. However, the financially stronger party is unlikely to be incentivised to enter into an agreement that bestows property and/or income rights on their partner when they know they are not legally obliged to do so.

Legal status should not depend solely on whether or not a regulated ceremony has taken place. However, as long as that is the platform on which relationship rights are decided cohabitants must be aware of their rights and make sure they mind the legal gap.