It’s fair to say that family life in the 21st century can take on many forms. While some couples may be preparing to get married, others may have decided to push forward with a civil partnership. Furthermore, data has suggested that more and more of us are happy simply cohabiting with loved ones without taking either of those steps.

According to the Office for National Statistics, there are in the region of 3.5 million cohabiting couple families in the UK with this equating to an 18.4 per cent share of all households – a rise of more than three per cent from a decade ago.

Throw a pandemic into the mix and many couples decided to move in together to avoid being separated by a lockdown – often before they felt ready or had even had a proper discussion about it with their partners.

But while a growing number of us are choosing to cohabit, do we actually realise the legal implications of taking such a step? I recently met Zahra Pabani, family law partner at Irwin Mitchell and asked for her advice. Here, she explains five key issues that all cohabiting couples should bear in mind.

couple cuddling on the couch

  1. Forget the ‘common law’ myth…

One of the classic myths around cohabitation is the idea that cohabiting couples have similar rights to those who are married. This was highlighted in research by the National Centre for Social Research and Exeter University, which found that 46 per cent of people believe cohabiting for several years amounts to common law marriage. However, the truth is much different.

Zahra explained: “This is one of the key misconceptions made about cohabiting, as at the end of the day there is no such automatic legal protection for cohabiting couples.

“The times may have changed in terms of relationships and couples living together, but our legal system is lagging behind and takes a more traditional view on matters. Put simply, the idea of a common law marriage is simply false.”

  1. …but change could be on the horizon 

While that may well be the case, couples living together can take some heart from a recent ruling which hinted that the law is beginning to change when it comes to the rights of those who have lived together outside of marriage or civil partnership.

Zahra outlined: “An interesting recent case related to two fathers who had applied to receive bereavement support payments following the death of their cohabiting partners. While they were originally rejected on the basis that they were unmarried, the High Court ruled they should still get the support.

“The ruling can be regarded as a baby step in the right direction for cohabiting couples, with the courts seemingly recognising that modern life is now completely different to how the law has generally addressed it. There’s a long way to go, but this could be a sign that things may be changing.”

marriage, expectations

  1. Get a cohabitation agreement

For the time being, the most important step that cohabiting couples can take to get some element of legal protection is to create a cohabitation agreement. Like a pre-nuptial agreement, this will allow you to agree on how assets and interests should be divided if things go wrong.

Zahra said: “Cohabitation agreements can protect your money, your capital and your investments and we highly recommend that people consider them – being forewarned is forearmed.

“They’ve become increasingly common in an environment that simply does not protect unmarried couples and where there is no such thing as a common law husband and wife.

“If the agreement is drafted with both parties being open and honest and the support of legal advisors, there is no reason it would not be upheld if a relationship was to break down.”

  1. Approach it with caution

Of course, while a cohabitation agreement may make sense in the current climate, it’s important to raise the idea of putting one in place with care. After all, it may involve approaching potentially tricky issues related to finances and other personal affairs.

Zahra advised: “Talking to a partner about putting a cohabitation agreement in place is not easy, as ultimately you would both have to consider possibility of your relationship breaking down and what that would ultimately mean.

“However, a great approach may be to simply remind each other that you are together for love and not money and work to reach a compromise on how matters should be handled.”

couple having awkward conversation

  1. Keep it updated

Finally, bear in mind that while you might have a cohabitation agreement in place and no plans to get married, you need to then ensure that it stays relevant as time goes by. A shift in your situation may have consequences on whether it ultimately remains useful.

Zahra said: “While a properly-prepared cohabitation agreement may be upheld when things go wrong, one thing which could change that is if your circumstances shift in a way which makes the document untenable.

“For instance, if there is a change in who is contributing money or other life-altering developments like children being born the agreement may be regarded as invalid. Keeping it updated therefore is a key step to take.”

Cohabitation is increasingly popular in the UK, but any couples who take the step – especially if it’s been motivated by a national lockdown – need to bear in mind the lack of legal protections currently in place.

Making an agreement and regularly reviewing it is undoubtedly a sensible step to take while we wait for the law to catch up to modern family life.

Are you cohabiting without an agreement in place? Contact Zahra for expert advice: