Where does the current law leave cohabiting couples if they separate, and is marriage 'worth it'.

According to the Office for National Statistics, marriage rates in the UK are declining. In 2011, the UK census confirmed that 49.4% of individuals were married, whereas 10 years later in 2021, this had dropped to 46.9%.

So what has changed? The reality is that couples are cohabiting and this modern approach to relationships is on the rise. Couples aged between 25-34 were 27% more likely to be cohabiting in 2021 than they were in 2011.

So where does the current law leave cohabiting couples if they separate, and is marriage 'worth it' (from a legal perspective)?

Is there such thing as a common law spouse?

No. If you live with your partner and are not married, you are cohabitants.

This remains the case however long you have been together and even if you have children.

Cohabitants have very different rights to those of couples who are married. Cohabitation rights are much more limited and it is important to understand how they apply to you, so that you will be financially secure should you separate.

If you are the stronger party and want to avoid any future financial claims, you will want to know what you may agree to your partner doing (or not doing) to avoid them acquiring an interest in your property.

If you are the weaker party, you will want to know how to ensure that any investment you make towards the other's assets won't be in vain.

What rights do I have as a cohabitant?

If you are living together, and later separate, generally your financial claims will be very limited.

If you own your home jointly then it is likely that the proceeds would be shared equally, unless one of you can prove to the contrary. If the property you live in is only owned by one of you, then the other will have to make out a claim that they have acquired a financial interest.

Checking the way your home is owned, and how the other person's contributions may impact upon that (whether by paying towards the mortgage, or a new kitchen for example) is vital, and ideally you should consider this before you make a decision to live together.

More information on cohabitation.

It is very unlikely that you would have claims against your partner's other assets (such as other property, savings or pension) unless you have chosen to jointly own them, or that you would have a claim for maintenance against their income. Other than the property where you live, and unless you have children together, that is likely to be where your claims start and end.

If you have children, you may be able to make a claim for certain payments such as housing during their minority years, school fees, medical expenses and child maintenance. However, such payments are for the benefit of the child rather than you as the parent and property will usually revert to the other parent once the child leaves home or finishes secondary education.

More information on Schedule 1 claims.

How can I protect my rights as a cohabitant?

If you are the financially weaker party, getting married may be the best financial protection available to you.

But for either party, putting in a place a cohabitation agreement which you can review together as your relationship progresses, may be invaluable.

Cohabitation agreements can cover all manner of things from property ownership, to who pays the bills, and even how insurance policies are assigned.

One vitally important distinction between cohabitants and married couples is that cohabiting couples generally do not have an automatic right to benefit from their partner's pension unless they are named formally as a nominated beneficiary.

If your partner were to die, unless they have made a will, the surviving partner would have no automatic right to inherit their estate. For more information see our previous insight on the topic.

What financial benefit is there to marriage?

When you become married, although there are exceptions, the general rule, and the usual starting point, is that everything you have is available for sharing, regardless of whose name it is in.

You also have financial claims against the other in relation to property, capital, pensions and possibly ongoing maintenance claims against income.

This is contrasted against being a cohabitant where your claim is much more limited and is likely only to centre on property and making financial provision for any children.

So, is marriage worth it?

If you are the financial weaker party, or if you plan to have children, the 'legal' answer is almost always 'yes'.

If you are the financially stronger party, marriage may be your preference, but you may wish to protect your position on divorce or dissolution by entering into a pre-nuptial agreement.

But divorce rates are on the rise and an estimated 42% of marriages will now end in divorce.

It is therefore wise to be cautious and go into any relationship with your eyes wide open.

Of course, the authors fully recognise that marriage is not just a 'legal decision'. All sorts of other factors and circumstances play a role in a couple's choice about how to regulate their relationship. However, being lawyers, this article is written from a legal perspective only.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.