Hampshire &amp; Isle of Wight

<figure class="wp-block-image size-full"><img decoding="async" loading="lazy" width="1500" height="1000" src="https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2025/05/Couple-on-sofa-Pexels.jpg" alt="Couple on a sofa cohabitation legal rights and reform Paris Smith LLP Hampshire family law" class="wp-image-37229" srcset="https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2025/05/Couple-on-sofa-Pexels.jpg 1500w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2025/05/Couple-on-sofa-Pexels-800x533.jpg 800w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2025/05/Couple-on-sofa-Pexels-1000x667.jpg 1000w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2025/05/Couple-on-sofa-Pexels-768x512.jpg 768w" sizes="(max-width: 1500px) 100vw, 1500px" /></figure>



In the UK, figures show more and more couples are choosing to cohabit. However, despite the continued widespread belief in a so-called ‘common law’ husband or wife status, in reality, living together without being married means you’ve very few rights when it comes to finances, property and children.



So, what is the current legal picture on cohabitation? Is there anything cohabiting couples can do to protect themselves from a future relationship breakdown? And what could long talked-about legal reforms mean in the future?



<h2 class="wp-block-heading" id="h-we-asked-danielle-taylor-partner-in-the-family-team-at-paris-smith-to-explain">We asked Danielle Taylor, Partner in the Family team at Paris Smith, to explain</h2>



In 2022, the number of people aged 16+ cohabiting as a couple and not in a marriage or civil partnership in England and Wales rose to 6.8 million, according to official figures, with subsequent data showing that in 2023, cohabiting couple families made up 18% of all families in the UK [ONS].



With the current figure likely to be higher still, it’s concerning that there are still widespread misconceptions when it comes to the legal position, status and rights or ‘remedies’ available to cohabitees. The most prevalent, that cohabiting couples automatically attain a so-called “common law spouse” status after a certain number of years, is highly misleading and doesn’t, in reality, reflect their actual legal position in England and Wales.



<h2 class="wp-block-heading" id="h-current-legal-position-for-cohabiting-couples-what-happens-if-things-go-wrong">Current legal position for cohabiting couples – what happens if things go wrong?</h2>



Without any legal agreements in place, cohabitees have very limited options available if their relationship breaks down. If they need to make claims in respect of jointly owned capital assets, joint liabilities or claims in trust or equity against property owned by one party they must rely on relatively inflexible civil law. Claims are usually dealt with under the Trusts of Land and Appointment of Trustees Act 1996 (commonly referred to as ToLATA).



Child maintenance is largely governed by the Child Maintenance Service, except for certain circumstances. However, claims in respect of children can also be made under Schedule 1 of the Children Act 1989. It’s worth noting that there are factors to be taken into consideration when making a claim and it won’t be appropriate in every case involving a child.



Many cohabitees make significant life choices together. This can involve one party being the ‘breadwinner’ and the other the ‘homemaker’. It can also include decisions around care for any children and respective financial contributions to investments and outgoings etc. In turn, this can have an impact on a party’s earning capacity, their pension provision and how capital assets are held. However, it’s worth noting that while all contributions are taken into consideration when determining financial settlement within divorce cases, non-financial contributions aren’t usually considered in civil claims.



For cohabitation cases, the court is limited to determining any claims for the benefit of children and determining the beneficial ownership of property, bank accounts, capital assets etc. Claims for income or pensions for cohabitees are also not available.



<h2 class="wp-block-heading" id="h-what-can-cohabiting-couples-do-to-strengthen-their-legal-position">What can cohabiting couples do to strengthen their legal position?</h2>



<figure class="wp-block-image size-full"><img decoding="async" loading="lazy" width="1500" height="1000" src="https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2025/05/Legal-advice-document-.jpg" alt="Cohabitation agreement legal advice" class="wp-image-37230" srcset="https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2025/05/Legal-advice-document-.jpg 1500w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2025/05/Legal-advice-document--800x533.jpg 800w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2025/05/Legal-advice-document--1000x667.jpg 1000w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2025/05/Legal-advice-document--768x512.jpg 768w" sizes="(max-width: 1500px) 100vw, 1500px" /></figure>



The good news is that, if they’re proactive, cohabitees can act to protect themselves under the current law – without a marriage certificate.



Specifically, cohabiting couples can enter into cohabitation agreements (or living together agreements) to set out (by way of a legally enforceable deed) what they intend, how they will organise their finances during the relationship and how they will deal with finances upon any future separation. Where such documents meet all of the legal requirements, courts will usually uphold them and parties can apply to the courts for ‘specific performance’ under contract law and for declarations under ToLATA 1996.



If it’s simply dealing with property ownership, cohabitees can also enter into declarations of trust, which specifically set out the shares in which the parties hold the property and how the property will be dealt with (sold or transferred) in the event of a relationship breakdown.



<h2 class="wp-block-heading" id="h-is-cohabitation-reform-necessary">Is cohabitation reform necessary?</h2>



During the last election, Labour made a manifesto pledge to protect women in cohabiting relationships. And they’ve since been under pressure to implement that pledge.



Due to the lack of legal protection and the limitations on the power of the courts to grant legal remedies, the current law can create unfair situations. This is particularly the case where there might be a long cohabiting relationship (perhaps with children who are now adults) and financial decisions have been made that adversely impact one party.



Most cohabitees rely on the general law of property, trusts and contract, which were not developed with cohabiting couples in mind. For example, the current law makes no provision for claims for compensation for any financial losses or looking at how reasonable income needs or needs in retirement can be met.



Equally, in cases where no promises have been made about sharing property, there have been no financial contributions to the property and there are no civil claims available, the courts do not have the ability to award a share of property or capital based on fairness.



This can mean that, after a long cohabiting relationship, one party can be left with no home, no capital, no income and no pension because of the joint financial decisions made during the relationship. Many people are not aware of the lack of protection under the law and therefore inadvertently place themselves in very vulnerable financial positions.



Statistically and historically, this has largely impacted women (hence the pledge from Labour to protect women in cohabiting relationships) but it may impact any cohabitee.



<figure class="wp-block-image size-full"><img decoding="async" loading="lazy" width="1280" height="854" src="https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2024/12/Paris-Smith-Danielle-Taylor-min.jpg" alt="Danielle Taylor Paris Smith" class="wp-image-36092" srcset="https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2024/12/Paris-Smith-Danielle-Taylor-min.jpg 1280w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2024/12/Paris-Smith-Danielle-Taylor-min-800x534.jpg 800w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2024/12/Paris-Smith-Danielle-Taylor-min-1000x667.jpg 1000w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2024/12/Paris-Smith-Danielle-Taylor-min-768x512.jpg 768w" sizes="(max-width: 1280px) 100vw, 1280px" /><figcaption class="wp-element-caption">Danielle Taylor, partner, solicitor and mediator at Paris Smith</figcaption></figure>



<h2 class="wp-block-heading" id="h-what-could-reform-mean-for-cohabitation">What could reform mean for cohabitation?</h2>



Outside of England and Wales, lots of other jurisdictions already have legal frameworks for cohabiting couples – the Netherlands, France, Scotland, New Zealand and Australia to name just a few. However, there is specific criteria on cohabitation that would need to be worked out.



Firstly, there is a question as to which cohabiting couples would qualify and what eligibility would indicate a committed, cohabiting relationship. Would there be a set qualifying period of cohabitation, such as two years? Or a would there be a more comprehensive checklist before legal rights are acquired?



Should it be an “opt in” or “opt out” scheme, where couples need to make a choice about whether they want any rights to apply to their relationship or not? If there is an opt in, would there be safeguards in place for vulnerable cohabitees (particularly those that may be the subject of abuse or control)? And how would we ensure that the public are informed about any opt-in requirements?



There are questions too when it comes to what rights should cohabitees have? Would it be appropriate to provide cohabiting couples with the same rights as married couples? Or should there remain differentiation between the status of married and unmarried couples? Would the law seek to put couples back in the same position they would have been in but for the cohabiting relationship, consider sharing principles or assess financial needs (or a combination of all three)? Should applications for maintenance or pension sharing be available, dependent on the circumstances?



These are all big questions that the government will need to contemplate when considering a reform to cohabitation law. All family law practitioners hope that any reform will be aimed towards clarity and fairness for cohabiting families to ensure that cohabiting couples are not left in vulnerable and unjust financial circumstances.



As it stands, the legal framework is rigid. Without couples actively taking steps to agree terms when cohabiting, there are limited remedies available – and often in the case of the most vulnerable parties. Until such time as the law changes, cohabiting couples should consider their status and legal positions to consider what (if any) protection may be beneficial.



<a href="https://parissmith.co.uk/staff/danielle-taylor-partner/" target="_blank" rel="noreferrer noopener">Danielle Taylor</a> is a partner, solicitor and mediator at <a href="https://parissmith.co.uk/your-life/family-law/" target="_blank" rel="noreferrer noopener">Paris Smith</a>. For advice about divorce and mediation, call 02380 482482 or 01962 679777 to speak with a member of the Paris Smith family team.

Common law conundrum – what legal rights do cohabiting couples have?

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