“Common law marriage” and cohabitation

The number of couples choosing to live together (cohabit) without getting married or entering a civil partnership, in what is often called “a common law marriage”, increased by 137% between 1996 and 2020.

Although cohabitating couples do have legal protection in several areas, such as under the law relating to domestic abuse, cohabitation gives no general legal status to a couple, unlike marriage and civil partnership from which many legal rights and responsibilities flow. Many people are unaware this is the case.

This briefing provides information about the number of cohabiting couples, how the law applies to them, the Law Commission’s proposals for reform, and other calls for reform. 

Unless specified otherwise, this paper deals with the law in England and Wales. 

Number of cohabiting couples

The total number of cohabiting couples has increased from around 1.5 million in 1996 to around 3.5 million in 2020, an increase of 137%. In 2020, 18% of couples that lived together were cohabiting rather than married or in a civil partnership. Trends differ between opposite-sex and same-sex cohabiting couples.

Cohabitation agreements

Some couples have a ‘cohabitation agreement’ which sets out what they want to happen if the relationship ends. Parties are encouraged to take legal advice on the terms and intended effect of any proposed agreement.

Law Commission proposals for reform

In July 2007, the Law Commission published a report which considered the financial consequences of ending cohabiting relationships. The Commission recommended that a new statutory scheme of ‘financial relief on separation’ should be introduced. This would be based on the ‘qualifying contributions’ each partner made to the relationship, giving rise to certain enduring consequences at the point of separation. ‘Qualifying contributions’ might be financial or otherwise, such as care for the children of both parties.

To be eligible, cohabitating couples would need to have had a child together or to have lived together for a minimum period. Couples would be able to opt out of the scheme through a written agreement.

In March 2008, the Labour Government announced it would be taking no action to implement the Law Commission’s recommendations until research on the cost and effectiveness of a similar scheme in Scotland could be studied. In April 2018, the May Government said it would be considering how to proceed in relation to the proposals ”in the context of any further reforms to the family justice system”. To date, the current Government has not given any further indication of what might happen next.

In a separate report published in 2011, the Law Commission recommended that some unmarried partners should have the right to inherit after each other’s death under the intestacy rules, without having to go to court. This has not been implemented.

Scotland

In Scotland, cohabitants may make limited claims against each other either when their relationship breaks down or when a partner dies.

Northern Ireland

In Northern Ireland, cohabitants have legal protection in some areas, but they have fewer rights and responsibilities than couples who have married or formed a civil partnership.