Author: Daniel Chalmers

Q: What is the legal difference between cohabitation and marriage in England and Wales?

A: Married couples and civil partners have comprehensive legal protections covering property, finances, pensions, inheritance and maintenance. Cohabiting couples have almost none. There is no such thing as a common law marriage. The legal gap is significant and affects what happens on separation, on death, and in everyday financial matters.

The number of cohabiting couples in England and Wales has increased by 25% in the past decade, yet the law has not kept pace. Many couples who choose to live together without marrying assume they have similar legal protections. They do not. In my practice, I see the consequences of this assumption regularly – particularly when relationships end or when one partner dies unexpectedly.

In this article, I set out eight important legal differences between cohabitation and marriage, so that couples can make informed decisions about their living arrangements and take steps to protect themselves.

1. Property rights on separation

Married: The court has broad powers to divide property fairly, taking into account the parties’ needs, contributions and the welfare of any children. The court can transfer property from one spouse to the other regardless of whose name is on the title.

Cohabiting: Property belongs to whoever legally owns it. If you are not on the title, you must prove a beneficial interest through a TOLATA claim. The court cannot redistribute property based on fairness or need.

2. Maintenance and financial support

Married: Either spouse can claim maintenance from the other during and after divorce, based on their financial needs and the other’s ability to pay.

Cohabiting: There is no right to maintenance from a former cohabiting partner. You cannot ask the court to order financial support for yourself after separation, only for your children.

This is one of the most common misconceptions of clients in long-term unmarried relationships. Unmarried clients do not have a right to claim maintenance from their former partner.

3. Pensions

Married: Pensions are treated as a matrimonial asset and can be shared through the making of a Pension Sharing Order on divorce. Pensions are often the single most valuable asset in a marriage.

Cohabiting: There is no mechanism to share pensions between unmarried partners. Each partner’s pension remains entirely their own on separation.

4. Inheritance on death

Married: A surviving spouse inherits automatically under the rules of intestacy if there is no will. Even if there is a will that excludes the surviving spouse, they can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 with a strong presumption in their favour.

Cohabiting: A surviving cohabiting partner has no automatic right to inherit. Under the intestacy rules, the estate passes to children, parents, siblings or other relatives. A cohabiting partner can make an Inheritance Act claim, but the threshold is higher and the outcome less certain than for a spouse.

5. Tax

Married: Married couples benefit from the Marriage Allowance (a transfer of personal allowance worth up to £1,260 in tax savings), exemption from Capital Gains Tax on transfers between spouses, and exemption from Inheritance Tax on transfers between spouses.

Cohabiting: None of these tax advantages apply. Transfers of property or assets between unmarried partners may trigger Capital Gains Tax. There is no Inheritance Tax spousal exemption.

6. Parental responsibility

Married: Both parents automatically have parental responsibility for their children.

Cohabiting: Mothers automatically have parental responsibility. Unmarried fathers only have parental responsibility if they are named on the birth certificate (for births after 1 December 2003), have a Parental Responsibility Agreement, or have obtained a court order. This is an important distinction that many unmarried fathers are unaware of.

7. Decision-making in medical emergencies

Married: A spouse is automatically treated as next of kin for medical decisions and has the right to be consulted about treatment.

Cohabiting: A cohabiting partner has no automatic right to be consulted or to make decisions about their partner’s medical treatment. This can be addressed by executing a Lasting Power of Attorney.

8. Protection from domestic abuse

Married and cohabiting: Both married and cohabiting partners have the same rights to apply for a Non-Molestation Order or Occupation Order under the Family Law Act 1996. This is one of the few areas where the law treats married and cohabiting couples equally.

Both married and unmarried individuals have the right to apply for protective orders under the Family Law Act 1996. Like married individuals, those that are or have been cohabitants are also classified as “associated persons” and so can make the same applications to court.

What can cohabiting couples do to protect themselves?

If you choose to cohabit and not marry, you can still take steps to protect your legal and financial position:

• Enter into a cohabitation agreement setting out your financial arrangements and what happens on separation.
• Make a will leaving your partner the share of your estate you wish them to have.
• Ensure the legal title to any property reflects the true ownership, supported by a declaration of trust.
• Nominate your partner as a pension beneficiary.
• Consider a Lasting Power of Attorney for health and welfare decisions.
• Ensure unmarried fathers are named on the birth certificate.

If you are living with a partner and want to understand how the law applies to your situation, the team at Edwards Family Law can help. Contact us at edwardsfamilylaw.co.uk.

Frequently Asked Questions

Q: What am I entitled to if my partner and I split up and we are not married?

A: Very little, by default. Unlike married couples, cohabiting partners have no automatic right to each other’s property, savings, pension or maintenance. Your entitlements depend on legal ownership, any cohabitation agreement, and whether you can establish a beneficial interest in a property through a TOLATA claim.

When a cohabiting relationship breaks down, the legal reality can be a shock. I regularly advise clients who assumed that years of living together, raising children together, and contributing to a shared home would give them financial protection similar to a married spouse. It does not. The law in England and Wales treats unmarried partners as separate individuals with separate assets – regardless of how intertwined their lives have become.

In this article, I explain what actually happens to property, finances and children when an unmarried couple separates, and what steps you should take to protect your position.

1. The starting point: who owns what?

When unmarried couples separate, the law does not divide assets based on fairness, need, or the length of the relationship. Instead, property belongs to whoever legally owns it. If the family home is in your partner’s sole name, the presumption is that it is entirely theirs. The starting point where there is sole legal ownership is sole beneficial ownership. If it is in joint names, the starting point is that you own it in equal shares. If you believe the true position is different from what the legal title shows, you will need to establish your claim through the court.

2. What if I contributed to a property that is not in my name?

If you contributed financially to a property that is in your partner’s sole name – for example, by paying towards the deposit, the mortgage, or substantial renovations – you may be able to establish a ‘beneficial interest’ through a resulting trust or constructive trust. This is done through a TOLATA claim. The court will consider the nature and extent of your financial contributions, any agreement (express or implied) about ownership, and whether you acted to your detriment in reliance on a shared understanding that you would have a stake in the property.

This is not straightforward. The burden of proof is on the person claiming the interest, the evidence requirements are demanding, and the outcome is uncertain. A contested TOLATA claim can cost tens of thousands of pounds and take twelve months or more to resolve.

I have had a number of clients over the years who presume they have a resulting trust arising from their having contributed to the deposit or the purchase price of a property.  Unfortunately, no such presumption exists.

3. What about savings, investments and personal assets?

Savings and investments belong to whoever’s name they are in. Joint accounts are presumed to be owned equally. There is no mechanism for the court to redistribute savings, investments or other personal assets between unmarried partners on the basis of fairness or need, as it can in a divorce. If you have contributed to savings or investments held in your partner’s name, you would need to establish a claim based on trust law principles – which is difficult and expensive.

4. Can I claim maintenance from my ex-partner?

No. There is no right to spousal maintenance for unmarried partners in England and Wales. Unlike a divorcing spouse, you cannot ask the court to order your former partner to support you financially after separation. The only financial claims available are for children (through the Child Maintenance Service or Schedule 1 of the Children Act 1989) and property claims under TOLATA.

5. What about the children?

Your rights and responsibilities as parents are identical to those of married parents. Both parents have a duty to support their children financially, and both can apply for a Child Arrangements Order to determine where the children live and how much time they spend with each parent. For higher-income families, Schedule 1 of the Children Act 1989 allows the court to order housing, maintenance and lump sums for the benefit of the child. This is often the most significant financial provision available to an unmarried parent on separation.

6. What should I do right now if we are separating?

Take these steps immediately:

• Get legal advice from a specialist cohabitation solicitor before agreeing anything or leaving the property.
• If your name is not on the property title but you believe you have a beneficial interest, register a restriction at the Land Registry to prevent a sale without your knowledge.
• Gather evidence of your financial contributions: bank statements, mortgage payments, receipts for renovations, and any written communications about ownership.
• Do not move out of the property without legal advice. Leaving may weaken your position.
• If you have children, prioritise agreeing living arrangements. The court’s paramount concern is always the children’s welfare.

Separating from a partner, no matter how long the relationship, is a major life change. Taking these steps that can ensure stability for your children and the protection of your finances. Clients that act quickly often find that they save considerable time, stress and money on resolving matters.

7. How can I prevent this situation in the future?

A cohabitation agreement, drafted by a solicitor with independent legal advice for both parties, is the most effective way to protect yourself. It sets out in advance how property, finances and practical matters will be handled on separation. It is significantly cheaper and less stressful than a contested TOLATA claim after the event. If you already own a property together, a declaration of trust recording each partner’s share is essential.

If your cohabiting relationship has broken down and you need advice about your property rights and financial position, the team at Edwards Family Law can help. Contact us at edwardsfamilylaw.co.uk.

Frequently Asked Question

Q: Do common law partners have legal rights in England and Wales?

A: No. There is no such thing as a ‘common law marriage’ in England and Wales. Cohabiting couples do not have the same legal rights as married couples or civil partners, regardless of how long they have lived together. An unmarried partner has no automatic right to the other’s property, pension, savings or inheritance.

One of the most persistent and damaging myths in English family law is the belief that living together for a long period creates a ‘common law marriage’ with legal protections similar to those enjoyed by married couples. It does not. I see the consequences of this misunderstanding regularly in my practice, and the financial and emotional cost to the partner who assumed they were protected can be devastating.

Below, I address the questions I am most frequently asked about the legal position of unmarried, cohabiting couples in England and Wales – and what you can do to protect yourself.

1. Is common law marriage a real thing in England and Wales?

No. The term ‘common law marriage’ has no legal status in England and Wales. A 2019 British Social Attitudes Survey found that 46% of the population wrongly believed it did. Whether you have lived together for two years or twenty, you do not acquire the financial rights or legal protections that come with marriage. This is not a technicality – it fundamentally affects what happens to your property, your finances and your future if the relationship ends.

I have had multiple clients make contact believing they are entitled to financial provision from a long-term partner when in reality, they are not. Conversely, I am also regularly approached by clients who believe they are required to make significant financial provision when they are not.

2. What rights do cohabiting couples actually have?

The short answer is: very few compared to married couples. An unmarried partner cannot claim spousal maintenance, has no automatic right to a share of the other’s property (regardless of how long they may have lived there), has no entitlement to a share of the other’s pension, and has no automatic right to inherit if the other partner dies without a will. The only legal routes available are claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) for property disputes, claims for children under Schedule 1 of the Children Act 1989, and in some cases a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if a partner dies.

3. What happens to the family home if we split up?

This depends entirely on whose name is on the legal title. If the property is in your partner’s sole name, you have no automatic right to remain in the property or to any share of its value – even if you paid towards the mortgage, funded renovations, or lived there for years. If the property is in joint names, the starting point is equal ownership, but this can be displaced by a declaration of trust or evidence of a different intention.

If you believe you have contributed to a property that is not in your name, you may be able to establish a ‘beneficial interest’ through a resulting trust or constructive trust under TOLATA. This requires evidence of financial contributions or a shared intention to own the property together. It is a complex, costly and uncertain process – which is precisely why a cohabitation agreement is so important.

What many people do not realise is that even if both parties are responsible for the payment of a mortgage, there is no presumption of a resulting trust arising from their having contributed to the deposit or indeed the purchase of a property.

4. Can I claim a share of my partner’s pension?

No. Unlike in a divorce, there is no mechanism for pension sharing between unmarried partners. If your partner has a substantial pension and you have been out of the workforce raising children, the pension remains entirely theirs. This is one of the most significant financial disadvantages of cohabitation compared to marriage, and one that many people only discover when it is too late.

5. What if we have children together?

Your rights and responsibilities as parents are the same whether you are married or not. Both parents can apply to the Court for a Child Arrangements Order, and both have a duty to support their children financially. The key difference is that an unmarried parent cannot make a financial claim for their own benefit (spousal maintenance) – only for the children. Under Schedule 1 of the Children Act 1989, the court can order maintenance, lump sums and housing provision for the benefit of a child, which in practice may result in the parent with care living in a property funded by the other parent until the child reaches adulthood.

6. What happens if my partner dies without a will?

If your partner dies without a will, the rules of intestacy apply. These rules make no provision for cohabiting partners. The estate passes to the deceased’s children, parents, siblings or other blood relatives – not to the surviving partner. You may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, but you must prove that you were maintained by the deceased or had lived together as husband and wife (or civil partners) for at least two years. The threshold is higher and the outcome less certain than for a surviving spouse.

7. How can I protect myself?

The single most important step you can take is to enter into a cohabitation agreement. This is a written document, drafted by a solicitor, that sets out how you and your partner will manage your finances, property and practical arrangements during the relationship and on separation. You should also ensure the legal title to any property reflects the true ownership (or is supported by a declaration of trust), make a will, and review your life insurance and pension nominations.

Cohabitation Agreements are legally binding documents that can go into very specific detail as to how couples own property, manage their finances and divide assets should the relationship break down. It can detail who is responsible for mortgage and bill payments as well as who owns specific personal belongings such as vehicles, furniture or even pets.

If you are in a cohabiting relationship and want to understand your legal position, or if your relationship has ended and you need advice about your rights, the team at Edwards Family Law can help. Contact us at edwardsfamilylaw.co.uk.

Frequently Asked Questions