More couples are now choosing to live together unmarried, but does it make a difference?

The latest 2021 Census data shows that more couples are breaking away from the traditions of marriage or civil partnership and choosing to live together without walking down the aisle.

Although commonly mistermed as a ‘Common law marriage’, there is in fact, no marriage or civil partnership and cohabiting couples are the fastest growing family model in the UK. According to the Census 2021, the proportion of people in a cohabiting relationship has increased from a fifth in 2011 to nearly a quarter in 2021.

This data also supports the general trend in the fall in marriage rates, published by the Office for National Statistics (ONS). According to the ONS, there were 61% fewer marriages in 2020 than in 2019, and whilst the Coronavirus pandemic is clearly one of the main reasons for such a dramatic fall, it does follow a general trend of decreasing marriages and between 1989 and 2019, where the number of marriages fell by some 36.6%.

The ONS data also highlights that the average age for age at marriage for opposite-sex couples in 2020 was 35.3 years for men and 33.2 for women; for same-sex couples this was higher at 38.1 years for men and 34.6 years for women.   

Many couples believe that if they live together for a certain period of time,  they will have an entitlement to their partner’s assets and income under a ‘Common Law Marriage’. For example, in Australia, couples who cohabit for more than 2 years have the same rights as a married couple when dealing with any children or finances of the relationship. Unfortunately, though, in England and Wales,  ‘Common Law Marriages’ simply do not exist, and cohabiting couples do not have the same rights as married couples, no matter how many years or decades the relationship lasted. Until there are changes in the law to accommodate the new norm of cohabitation, the only way for a cohabiting couple to truly protect themselves is to write a Cohabitation Agreement.

A Cohabitation Agreement is a legally binding document that clarifies your affairs in relation to finances, property and children, and provides certainty and peace of mind should your relationship break down in the future. 

Very often when a couple buys a home, they may contribute varying amounts to the deposit and even the monthly mortgage payments, so a Cohabitation Agreement can help you to agree the appropriate division of the property value, if there was ever a requirement for it to be sold.  Without this agreement, you may have to take the matter to Court with a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) , which could be a very costly, complicated and emotionally difficult process to reach a resolution. If you have children and are in cohabiting relationship, you may also have to take the matter to Court  under Schedule 1 of the Children Act 1989 to make orders for maintenance payments or lump sums for the benefit of the children, and settlement or transfer of property for the benefit of the children. 

Due to the higher cost of properties, it is increasingly common for parents or other family members to have gifted, loaned, or invested funds to enable their children to buy their first property, and then if the child subsequently wishes to cohabit with a new partner in the property, parents may insist on the execution of a Cohabitation Agreement to protect the family money invested in the property. 

If you are a parent or family member who wants to provide financial assistance to your children, family and/or their partner to purchase a property, we can assist you in protecting your investment in that property should the couples’ relationship breakdown and the property be sold in the future.

A Cohabitation Agreement can also be used to record the ownership of other items such as cars, furniture or even pets, with an agreement on who is to retain the item should the cohabitation end.

You should keep a Cohabitation Agreement under review as your circumstances change.

If you think a Cohabitation Agreement should be something to consider for your relationship or you already have one that is no longer up-to-date, then our experts are here to advise you.