1. Why we’re talking about cohabitation now
Cohabiting couple families are the UK’s fastest-growing family type. They made up 18 % of all families in 2023 (around 3.6 million opposite-sex couples, plus 137 000 same-sex couples) – a jump of 469 000 families in just ten years ons.gov.ukons.gov.uk. That rise is reflected in our day-to-day practice: more clients are finding new partners before their divorce finances are tied up, raising tricky questions about rights, resources and responsibilities.
2. The “common-law marriage” myth
Despite widespread belief to the contrary, living together confers no automatic legal status in England & Wales. Government guidance bluntly states that “‘common law marriages’ do not exist” gov.ukgov.uk, and a House of Commons Library briefing confirms the same noting that almost half the public still think otherwise commonslibrary.parliament.uk. In short, if you are not married or in a civil partnership your partner’s income, pension and property remain theirs, unless you take positive steps to share or protect an interest.
3. Property and finances: what the law does (and doesn’t) offer
| Issue | Married / Civil partners | Cohabitees |
|---|---|---|
| Home | Court can order transfer, sale or adjustment under Matrimonial Causes Act 1973 | Only a TOLATA claim (Trusts of Land and Appointment of Trustees Act 1996) if you can prove a beneficial interest hawkinsfamilylaw.co.uk |
| Maintenance | Spousal maintenance possible | No spousal maintenance – though child maintenance still payable |
| Pensions | Can be shared by court order | No sharing order; each keeps their own fund |
| Inheritance (no will) | Spouse/civil partner inherits on intestacy | Partner inherits nothing; must rely on a claim under the Inheritance (Provision for Family and Dependants) Act 1975 gov.uklegislation.gov.uk |
4. Cohabitation agreements & declarations of trust – your safety net
A cohabitation agreement is a contract setting out who owns what, how bills are paid, and what happens if you separate. The family courts now routinely treat properly drafted agreements as binding, provided both parties had independent advice and full disclosure stewartslaw.combbslaw.co.uk.
Where one partner moves into the other’s home, a declaration of trust (sometimes called a deed of trust) can record any financial stake the incoming partner acquires. Without it, the registered owner is usually treated as the sole owner.
Tip: sign both documents before you pick up the keys.
5. Why you still need a will
If you die without a will, your unmarried partner is not recognised by the intestacy rules and cannot even apply for probate gov.ukgov.uk. A simple will ensures your partner (and any children) inherit as you intend. It can also avoid expensive Inheritance Act litigation later.
6. Cohabiting while your divorce finances are live – hidden pitfalls
Family courts decide financial settlements largely on needs. When you move in with a new partner, their housing and income can be treated as a resource that reduces your own needs:
Your claim for a larger share of the marital pot may shrink.
Ongoing spousal maintenance can be reduced or, if your consent order includes a “six-month cohabitation” clause, stop altogether mcalisterfamilylaw.co.ukstephens-scown.co.uk.
Joint bank accounts, shared tenancy agreements or even a toothbrush left permanently at the new address are evidence the other side can use.
Our advice? Enjoy the relationship, but wait to set up home until your financial order is sealed or expect to disclose full details of your new partner’s means.
7. What about the children?
Parental responsibility does not depend on marital status. Mothers automatically have it; fathers obtain it by being married to the mother or by being named on the birth certificate gov.uk. Cohabiting parents therefore retain the same decision-making rights and child-maintenance duties after separation.
8. The reform debate
Legal bodies from the Law Commission to Resolution have long urged a statutory scheme for cohabitants. A recent New Law Journal commentary warns the current patchwork leaves millions, especially women, vulnerable newlawjournal.co.uk. Government signalled a consultation on “ambitious reform” earlier this year, but no Bill is yet before Parliament thetimes.co.uk. Until change arrives, proactive planning is essential.
9. Practical checklist before you move in together
Speak to a family solicitor about a cohabitation agreement and declaration of trust.
Update (or make) your will.
Insure major assets and agree how premiums are shared.
Keep records of contributions to the mortgage or renovations.
Review divorce proceedings – cohabitation could affect your settlement or maintenance.
10. How Marlborough Law can help
As a small, community-focused firm serving Hungerford, Marlborough, Swindon and Newbury, we prioritise non-confrontational solutions. We draft clear, bespoke cohabitation agreements, guide clients through mediation, and ensure children remain at the centre of every decision. If you’re thinking of “pressing the button or cutting that new key”, let’s talk first.
This article summarises English law as at 9 July 2025 and is no substitute for personalised legal advice. For a confidential discussion, contact the Marlborough Law family team.
