Cohabitation: How the Law treats living Partners

What is unmarried cohabitation? 

There is no legal definition of what cohabitation actually means. It has been called a function-based relationship in comparison to a relationship based on love and family.

Cohabitation has been given a wide, varied definition in case law, a very broad outline on what the courts have said to be included in the concept of cohabitation includes relationships were:

  • A Couple live together as husband and wife without being married or civil partners
  • Members of the same household
  • A relationship were a couple shares expenses
  • Sexual relationships
  • Relationships publicly known
  • Relationships were children have been conceived

The relationship which is everyday recognised as a cohabiting relationship is that of a couple living together as if they were husband and wife without the legal documentation of a marriage.

The Legal Consequences of Marriage, Civil Partnerships, and Unmarried Couples

Financial Support

  • Once a couple are married they share a mutual duty to provide for one and other with financial support. 
  • This mutual duty of financial support has now extended to cover civil partners since the introduction of the Civil Partnership Act 2004
  • Cohabiting Partners have no mutual duty to provide for each other  with financial support, either during their relationship or if the relationship ever breaks down.

Property Rights

Occupation of a Property

  • Under the Family Law Act 1996, S30 explains how spouses and civil partners have ‘home rights’ which automatically arise, without the need for either partner to apply.
  • Home rights will give both partners, whether to a marriage or civil partnership, the right to not be evicted from the family home after separation or during the relationship, even where only one partner legal owns the home.
  • The 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 may apply for an ‘occupation order’ under the Family Law Act 1996,   to gain the rights equivalent to matrimonial home rights. However, this is not an automatic right. 

Ownership of a property

  • Spouses and civil partners are subject to the general law of property during their marriage/ civil partnership. 
  • The courts do have a wide discretion to order the sale or transfer of a property on the divorce or dissolution of the relationship.
  • In relation to Cohabitants, they are subject to the general rules of property both during and after their relationship, There are no special rules governing family assets. 

Inheritance and succession

  • Where one spouse/ Civil partner dies, the surviving spouse/ Civil partner has the right to inheritance where the deceased has died before the creation of a will.
  • A surviving partner of a cohabitant has no automatic right to any inheritance where their partner dies intestate, but they do have the ability to make a claim under the Inheritance (provisions for Family and Dependants) Act 1975.
  • This will allow an unmarried partner to make an order without having to show that the surviving partner was being cared for by the deceased. The surviving partner will have to show that they lived with the deceased for two years immediately prior to the death of the partner and that the will failed to make reasonable financial provisions for the surviving partner. 

Children 

  • Family Law Reform Act 1987, abolished the label ‘illegitimate’ child. Nearly all the differences in treatment based on the marital status of a child’s parents are now gone.