Around one quarter of all couples in the UK now cohabit outside of marriage, with this being particularly common in younger age groups. Meanwhile, the proportion of those aged 16 or over fell, for the first time in 2022, below 50 per cent.
What this shows us is that the structure of society is evolving, and unmarried cohabitation is becoming more popular – likely to become more so according to trends in Millennial and Gen Z couples.
As attitudes towards unmarried couples also evolve, cohabitees are facing less and less social stigma and challenges arising from those around them.
However, the same cannot also be said for their status in the law.
Cohabitation and the law
In some regards, cohabiting couples aren’t treated any differently to married couples – largely relating to shared assets and shared homeownership.
For example, if two cohabitees own their home as joint tenants, they both enjoy full and equal rights to the whole property, and the property will pass to one partner on the death of the other.
This doesn’t apply if the couple are tenants in common, as each couple owns a different share of the property. In this case, the deceased partner’s share of the property may pass to someone else if they do not have a Will explicitly leaving it to their partner.
The rights of cohabitees become even more complex in other areas.
For example, without prior legal agreements, cohabitees cannot:
- Make medical or care decisions for their partner
- Inherit their partner’s assets
- Access bank accounts after their partner’s death
- Obtain automatic paternal parental responsibility for children (unless named on the birth certificate)
Unmarried cohabitees are also unable to access a number of tax advantages for spouses, such as the Marriage Allowance.
The issue of recognition
The main issue of recognising long-term cohabitation in the same way as a marriage is that marriage is a legal process. It requires documentation and provides a specific milestone at which spouses are legally bound to one another.
In comparison, cohabitation is an ongoing process and it is difficult to determine when, for example, this living arrangement might constitute a legal relationship as recognised by a marriage.
As such, cohabiting couples that have been together for decades face significantly fewer legal rights than newlyweds. This is not to say that newlyweds should have fewer rights based on the length of their relationship – precisely the opposite, rights for life partners ought to be equal.
Can couples protect themselves?
There are steps that cohabiting couples can take to mitigate some of the issues they face under the law, but they’re not all-encompassing.
For example, a valid, up to date Will is one of the most powerful tools in the cohabitee’s arsenal – allowing one partner to leave any assets they wish to their cohabitee in the event of their death, including money, possessions and stakes in a tenants-in-common property.
Lasting Powers of Attorney (LPAs) are also excellent defences against the issues posed by cohabitation, allowing one partner to make medical and care decisions (under a health and wellbeing LPA) and financial and property decisions (under a finance and property LPA) for their partner in the event that they lose capacity suddenly, such as through an accident or illness.
However, this takes us to the core of the issue. Long-term unmarried partners have to go through these processes to obtain the rights that married couples, who may or may not be far less aware of one another’s wishes, are assigned automatically.
Legally, it is understandable. Marriage is a legal contract and creates a new unit comprising of two people, easily trackable and implicitly giving consent to their spouse making important decisions.
For couples, however, it can create some truly impossible situations.
Assets may be passed on to someone else, especially if the deceased partner had children or a separated (but not divorced) spouse. Medical decisions may be made against the person’s wishes. A lifelong partnership may leave one partner without access to their cohabitee’s pension or bank accounts.
Legal evolutions
As attitudes and social norms change, the law has always evolved to meet the needs of individuals, couples and families – although not always at the pace that we’d like.
The challenge now is to encourage and support changes in the legal recognition of cohabiting couples. It’s past time that long-term cohabitees, who may have built a life together, have substantial shared assets or even children, enjoy the same or similar legal rights as spouses.
We see this particularly in medical emergencies and upon the death of one partner. What makes a difficult situation more stressful is the knowledge that, in the absence of a Lasting Power of Attorney, the other partner cannot make care decisions or access financial information.
It is not the mere fact that cohabitee relationships aren’t recognised in the same way as marriage that causes these issues – it’s the fact that they aren’t recognised regardless of the length and complexity of the relationship.
What we need is a way of assigning these key rights to longstanding couples who choose not to marry.
Whether that be through a single, quick application process similar to registering a marriage, or automatically after so many years as cohabitees, it’s important that the core of any legislation revolves around the needs of families and couples – not jumping through hoops.
For cohabiting couples, the legal system does what it can with the legislation it has to work with. There are mitigations that unmarried partners can put in place to avoid being left in the cold, but, in many ways, couples are still fundamentally disadvantaged by being unmarried.
In an era where marriage is increasingly not the norm, this is a state of affairs that needs to be edged out of family legislation to make room for the modern family unit.
