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Marriage or cohabitation?

The start of Autumn marks the end of the Summer wedding season and with that comes the end of months, even years, of having to make decisions about choosing between a wedding dress designed by Sarah Burton or Vera Wang, deciding whether the wedding invitations should be embossed in gold or silver leaf, or whether to sit Granny Smith next to cantankerous Aunt Bessie.

But what if you decide that marriage is not for you? What if you are already satisfied with the current status quo? What if remaining unmarried suits you best? The way that society has developed has meant that individuals may feel constrained to follow a standard template: to find a partner, to get married and to live happily ever after. Even Parliament has enacted laws, which incentivises its citizens to get married and therefore reap the benefits of being formally joined in matrimonial harmony.

Benefits of Marriage

Unfortunately, as the law currently stands, couples who choose not to marry do not enjoy the same fruits as those who are. Matrimony brings families together and couples who tie the knot enjoy the many financial benefits that derive from it. To name but a few examples:

  • in lower-income families, the non-taxpayer can apply for their tax-free allowance to be transferred to the taxpayer;
  • when one spouse dies, his or her assets are passed on to the surviving spouse without incurring inheritance tax; and
  • a surviving spouse may be entitled to his or her spouse’s final salary pension.

Ironically, the benefit of getting married is acutely noticeable when a marriage has irretrievably broken down. In England and Wales, both spouses may, under the Matrimonial Causes Act 1973, bring financial claims against the other on the breakdown of the marriage. The Family Court has a wide range of powers to ensure that there is a fair distribution of assets between the spouses. Such powers of the Court include maintenance payments orders, lump sum orders, periodical payments orders for the benefit of the children of the family, property transfer orders, settlement of specified property (i.e. setting up a trust), varying any nuptial settlement or trust, orders for sale of property and pension sharing orders. But these powers do not extend to unmarried partners (otherwise known as cohabitants).


The latest report from the Office for National Statistics stated that, whilst, “Married and civil partner couple families were the most common family type in the UK in 2018, representing two-thirds (67.1%) of all families…cohabiting couple families were the second-largest family type at 3.4 million (17.9%)…” It is also noteworthy that, “Since 2008, the share of married-couple families has declined from 69.1% of all families, while the share of cohabiting couple families has increased from 15.3%.

The danger for cohabiting couples is that the common law marriage myth still pervades society. In England and Wales, there is no such legal status as common law marriage, no matter how long they have been together. Essentially, the unmarried couple is treated by the Courts as being two separate individuals and they will have to rely on the laws of property and equity in the event that a dispute over assets arises.

All is not lost, however, and a cohabiting couple can put in place a number of measures to mitigate the fallout from the breakdown of a relationship. For example:

  • By entering into a Cohabitation Agreement – the Agreement sets out who owns what and in what proportion, and can also deal with how the assets in the relationship, including savings, personal belongings and contents of the house, will be split on the breakdown of the relationship. A Cohabitation Agreement can be very useful where one party wants to protect the ownership of their home if their partner moves in with him/her. In that situation, the homeowner may be minded to ensure that any contribution the incoming partner makes to the day to day running of the house is not treated as contributing to the mortgage, which may, for example, entitle him/her to a share in the homeowner’s property.
  • By also entering into a Deed of Trust – the Deed is a formal arrangement which allows the owners of a property to determine how they wish each of their shares to be split. It is entirely up to the couple to choose how they wish the property to be split, for example, 30:70 or 60:40. A Deed of Trust is usually put in place where one partner has put in a larger proportion of the deposit or, what is quite common nowadays, for parents helping their son or daughter onto the property ladder, to protect their “investment” in the event that their son or daughter’s relationship ends.
  • And ensuring that a valid Will is put in place – If an individual dies intestate (i.e. without a Will) then his or her assets will pass under the intestacy rules and not pass to the surviving unmarried partner. A Will can ensure that provision is made for a surviving dependent partner.

There have been further inroads for cohabitants. On 30 August 2018, the UK Supreme Court allowed the appeal by Siobhan McLaughlin ([2018] UKSC 48) and made a declaration that in this specific case section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 was “incompatible” with the European Convention of Human Rights. In that case, Ms McLaughlin and her partner, John Adams, were unmarried and had dependent children when their father, Mr Adams, died. It was argued, but later rejected, that, had Ms McLaughlin married Mr Adams, then she would have been entitled to make a legitimate claim for Widowed Parent’s Allowance, but her claim was refused. The UK Supreme Court determined that in fact the benefits rule was discriminatory under the European Convention on Human Rights.

Some comfort can be taken from cases such as these, but these cases tend to be very fact specific and do not ordinarily assist the wider community. The Cohabitation Rights Bill, which had its second reading in the House of Lords this year, could assist cohabitants by providing certain protections for persons who live or have lived together as a couple. The Bill does not put cohabitants on an equal footing with married couples on divorce, but Lord Marks said that it will ‘enable courts…to adjust the financial position of qualifying cohabitants on relationship breakdown, so as to spread the financial consequences, benefits and costs fairly between them.’ Unsurprisingly, the Bill has succumbed to the never ending saga that is Brexit and the Bill will make no further progress at this point as the 2017 to 2019 session of Parliament has prorogued.

Progress remains slow for giving cohabitants’ rights that are on an equal footing to married couples and this issue is not particularly high on Parliament’s agenda. However, as more couples cohabit, there will be a greater need to ensure that they are protected. Meanwhile, unmarried couples will need to ensure that they have their ducks in a row to protect as many of their assets as possible on the breakdown of their relationship until Parliament legislates for them. Forward planning could save significant heartache later on.

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