In modern society, people are far more likely to simply live together and share their lives, as opposed to forming a civil partnership or getting married. It is also far more common nowadays for couples to live together before marriage, even if they do intend to marry or enter into a civil partnership at some point. These decisions are often motivated by finances and practicalities and indeed one may consider “trialling” living together prior to getting married to be a sensible plan. However, it is important to understand the legal implications of the decision to marry vs not marry.
What is a cohabiting relationship?
A cohabiting relationship is used to describe people who live together, usually in an intimate or sexual relationship, but who are neither married nor civil partners. Essentially it is unmarried couples.
There is a misconception that cohabiting elevates the legal status of a relationship, giving the parties what is sometimes referred to as a ‘common law marriage’. The reality is that there is no such thing as a common law marriage. A cohabiting relationship does not impact your legal relationship or marital status. Your rights and responsibilities towards each other are limited and you do not have the same legal protection as a married couple, even if a significant number of years pass.
Why do couples choose to cohabit?
Couples choose to cohabit for a number of reasons; financial, emotional and practical.
Amidst the cost-of-living crisis, it can be very sensible financially to share living expenses with a partner, this may mean that people cohabit earlier on in a relationship out of necessity and to afford a desired standard of living.
The practicalities of sharing one space, especially if you spend a lot of time together anyway, can also lead to couples wishing to cohabit. It will reduce travel expenses and allow you both more time in your own home and enjoy each other’s company.
Cohabiting can also be a good way to take a relationship to the next level; an opportunity to test the waters. You will likely spend more time together and be required to share daily tasks and responsibilities. This requires an additional level of commitment which can test the strength of a relationship before committing to one another more formally – perhaps through marriage or a civil partnership.
What are some benefits of cohabiting?
As a couple, cohabiting means that instead of paying for two properties between you, you can reduce your combined outgoings by paying for only one property and sharing the costs of the bills and utilities. This often enables couples to either access more desirable accommodation or to have access to more surplus cash, perhaps to use for savings or in other areas of their lives.
Living together can be make or break for many relationships, it can be a good way to fully get to know each other and determine the long-term future of the relationship.
Financial savings
As mentioned above, for lots of couples it makes clear financial sense to cohabit, and the savings can be substantial.
For example, if a couple are living separately, between them they will likely be paying two sets of rent, utilities, and council tax. By cohabiting they would, in theory, reduce the housing outgoings of the couple by as much as 50% and by sharing the costs of one property will also reduce each individual expense. This can then give the couple the opportunity to consider how they wish to utilize the additional cash they would now have available to them. It may be that they are now able to save or can move to a more convenient or desirable area that was individually unaffordable.
Shared responsibilities
Sharing the responsibilities by cohabiting can strengthen a relationship; it requires an extra level of commitment from one another. Becoming financially linked to one another requires a significant amount of trust, but having someone to share the burden of household costs – and jobs – with can be a very attractive prospect.
From a legal perspective, living together can lead to a couple acquiring joint liabilities; you may jointly rent a property, buy a property in joint names, obtain a mortgage in joint names, both be required to pay council tax etc.
What are the challenges and risks of cohabitation?
When parties choose to marry or enter a civil partnership, there is a basic over-arching principle, which provides that should that relationship come to an end, the matrimonial assets and liabilities of the parties should be divided in such a way that enables both parties to meet their reasonable needs, and neither party should be left in a situation which constitutes undue hardship. No such principles apply to unmarried couples who are cohabiting. The couple who have lived together for 30 years and have 4 children together are no different in law to two friends who have lived together for 2 years. There is some protection available for unmarried couples, and a route to a potential claim, if the couple have children, under Schedule 1 of the Children Act, but the scope for one party in a cohabiting relationship to bring a claim against the other is overall much more limited that it is for a married couple.
Cohabiting in the long term can therefore create a risk, particularly for the financially weaker party in the relationship. Cohabitants can be left in vulnerable or precarious positions, should the relationship break down, or if one party was to die intestate.
Couples can attempt to mitigate some of these risks by entering into a ‘Cohabitation Agreement’. This is a contractual document which can be used to regulate a cohabiting couple’s rights, interests and claims in the event of a breakdown of the relationship. A properly prepared agreement can be a very useful wealth management tool and should be taken into account by the Court in the event of litigation under the above-mentioned statutes.
Legal ambiguity
The legal status of a cohabiting couple is often misunderstood, which can mean that people find themselves, unexpectedly, in a vulnerable position. Many are still under the mistaken illusion that they are a common law husband and wife.
As is set out above, cohabiting, even for a sustained period of time, does not afford a couple the same legal rights as if they were married. On the breakdown of a relationship of a co-habiting couple, usually, the parties would have to rely on strict property law principles to determine their shares in their jointly owned property. In the event of disagreement, proceedings under the Trusts of Lands and Appointments of Trustees Act 1996 (“TOLATA”) may be required. If there is a child, there may be scope for a claim under Schedule 1. This firm acts in claims under TOLATA and Schedule 1.
If you wish to seek further advice on this topic or need specific assistance in relation to a cohabiting relationship, please do not hesitate to contact us.
