As the number of cohabiting couples in the UK continues to rise, public understanding of their legal rights, particularly upon separation, remains worryingly low. One of the most significant misconceptions is the idea of the “common law marriage,” a non-existent legal status in England and Wales. In reality, unmarried partners do not enjoy the same legal protections as married couples when a relationship ends, particularly in relation to property and financial settlements.
According to recent studies, cohabiting couples have become the fastest‑growing family type in the UK, preferred by many over marriage. The number of cohabiting couples in the UK rose from about 1.5 million in 1996 to around 3.6 million in 2021, representing over 140% increase. In England and Wales, for the first time, the proportion of adults who are married or in a civil partnership dropped below 50%, while the number of cohabiting couples rose from just under 20% in 2012 to nearly 23% in 2022. This marks a major milestone: fewer than half of adults are formally partnered through marriage or civil partnership, while cohabitation continues to rise.
For unmarried couples, the current law means cohabiting couples have no right to claim any of their partner’s assets or property, even if they have lived together for many years or have children. An unmarried partner can’t legally claim financial support for themselves if the relationship ends, though claims are possible where it is for the benefit of any children of the family. Any joint assets, like property or shared bank accounts, will be split in accordance with how they are owned. For instance if you both own a property in equal shares that will be the division on separation. Unmarried couples do not automatically inherit anything if their partner passes away without a will, but they can apply to the estate for financial provision.
By contrast, married couples benefit from a well-established legal framework under the Matrimonial Causes Act 1973, which gives the courts wide discretionary powers to distribute assets fairly. This difference in legal treatment has substantial consequences — often leaving cohabiting partners vulnerable at a time of emotional and financial upheaval.
When a marriage ends in divorce, the courts have a range of powers within the Matrimonial Causes Act 1973 to enable a fair outcome. Judges can consider the full financial circumstances of both parties, including the income, property and other assets, the needs of children and any contributions made to the family. The courts can make a broad range of orders, such as the transfer or sale of property, a specific payment, pension sharing or spousal maintenance.
These orders enable an equitable approach towards financial settlements, accounting for the economic and non-economic contributions made within marriage. For cohabiting couples, the situation is very different. There is no similar legislation to the Matrimonial Causes Act for unmarried partners. As a consequence, financial orders are quite scarce, and courts do not have the same abilities to redistribute assets based on fairness or needs. Cohabitees are dependent on general civil law principles, such as trusts, property law and sometimes contract law.
Typical routes to settlements include:
Property Disputes under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA): Under TOLATA, cohabiting partners can apply to the courts to determine their beneficial interests in shared property. However if ownership of
the property has already been recorded in the Transfer deed the court is limited in what they can do.
Children Act 1989: If a couple have children, a limited form of financial support is possible within Schedule 1 of the Children Act 1989, including housing provision, child maintenance or specific sums of money for the benefit of the child.
In some cases, cohabiting partners may make claims under: Proprietary estoppel (where one party relies on a promise to their detriment), unjust enrichment or contract law.
The legal limitations for many cohabiting partners means they are left financially vulnerable after separation, particularly for women who may have sacrificed careers to care for children. They can find themselves with no legal rights for spousal maintenance, no share in property and no claim to pensions accrued during the relationship.
As cohabitation becomes more common, more families are exposed to legal vulnerabilities, often without realising it. There have been multiple requests from legal professionals and the Law Commission to reform the law and provide enhanced protection for cohabiting couples. Proposals include: Statutory cohabitation rights, including financial measures after long-term cohabitation, opt-out models, where default protections apply unless couples contract out.
The legal disparity between married and cohabiting couples in England and Wales is stark. While the Matrimonial Causes Act 1973 gives courts much wider discretion on how to distribute assets fairly on divorce, cohabiting partners are left navigating a complex and limited system that rarely delivers just outcomes.
With cohabitation on the rise, the urgency for reform is growing. Until then, cohabiting couples should take proactive legal steps, such as drafting a cohabitation agreement, making wills, and clearly recording ownership of property, to avoid being caught unprotected when relationships end.
