Cohabitation and succession rights in England and Wales explained

My colleagues Nadine Walton and Sophie Richardson have recently published articles on the Ministry of Justice's proposed reforms to the law of cohabitation in England and Wales, (read Nadine’s piece here and Sophie’s here.) The proposals give us a sense of how the law governing modern families might look in the future. But the proposed reforms remain at consultation stage and may never be brought into force. Even if they are, new law is unlikely to take effect within the next 5 years.

This article sets out the law as it currently stands in England and Wales, and offers some practical steps cohabitants can take now to protect themselves.

Cohabitation in England and Wales

The number of cohabiting people in the UK – people living together without entering a civil partnership or marriage (Cohabitants) – is rapidly increasing. Data from the 2021 census showed that the number of cohabiting relationships increased from 1.5m in 1996 to 3.6m in 2021. In 2024 an estimated 1 in 4 long term Cohabitants were neither married nor in a civil partnership.

Whether or not to make your relationship legally binding is a personal choice, and many couples choose not to take that step. But if the relationship breaks down, or ends following the death of one of the parties, UK-based Cohabitants are left in a very precarious position, especially where there are unequal financial positions. For those on the wrong side of that, the end of the relationship can have dire financial consequences if no protections are put in place.

In this article we consider the position of Cohabitants who are living in England and Wales, the situation in Scotland is very different and is covered in this article.

The unhelpful myth of 'common law marriage'

There is a widespread (and unhelpful) belief that long term cohabitation creates a legally binding 'common law marriage', granting Cohabitants the same rights and protections as a marriage or civil partnership.

That belief is wrong. Common law marriage does not currently exist as a legal concept in any part of the UK. Many are shocked by how different the reality is when a relationship ends, or their partner dies.

Common client questions following a break up with a Cohabitant

Some of the key questions arising following a break up with a Cohabitant are as follows:

1. Can I bring financial remedy proceedings, like a divorce?

No - in England and Wales, there is no ability for Cohabitants to seek a financial settlement in the same way as divorce (contrast with Scotland, where some Cohabitants have a financial claim under s28 of the Family Law (Scotland) Act 2006).
2. Can I claim ownership in a share of the home?

For property in England and Wales, you will only have a claim to ownership of the home or other properties if either:
a) you are named as one of the owners on the title documents, or

b) if you contributed financially to the property in some way, in which case you may be able to claim an interest under the law of equity.

For example, you contributed to the deposit or mortgage payments, or funded renovation works on the understanding it would lead to ownership. If you are not named on the title documents, the onus will be on you to pursue a court claim to establish your interest (and face the costs and risks that go along with that).
3. Can I go on living at the property?
If you cannot prove ownership of the property, and have not entered into an agreement or tenancy protecting your right to occupy the house, then you will likely have no right to go on living there.
If you can show an ownership interest in the way discussed above, you may have a right to continue occupying your home unless and until it is sold. A dispute about occupancy would have to be determined by the court under the provisions of the Trust of Land and Appointment of Trustees Act 1996 (ToLATA), which is dealt with by the Business and Property Courts, rather than the Family Courts.
4. Can I force a sale of the property?

If joint ownership is established as discussed above, but you cannot agree on whether to sell the property or buy one party out, then the provisions of the ToLATA will govern the position. As above the court would ultimately need to determine the matter if agreement could not be reached.
5. What if we have children?

Children are dealt with separately to the financial position of the Cohabitants themselves, and irrespective of whether the parents are married, in a civil partnership, or cohabiting. The welfare of the children will be the court's paramount concern. Where the parents cannot agree on arrangements for the children (such as where they will live and how they will spend time with each parent), an application can be made under the Children Act 1989 for the court to determine matters. Advice from a family lawyer who specialises in children matters is recommended.

What happens if the relationship is ended by the death of one Cohabitant?

Where the relationship ends due to death, Cohabitants get a bit more protection in England and Wales (especially compared to those in Scotland), but the position is far from ideal. The pathways will primarily depend on the presence of a will.

1. Is there a will providing for the Cohabitant?

This is the first question to ask – hopefully the deceased left a will and hopefully it leaves all assets to the survivor (or at least makes sufficient provision to cover living arrangements and financial need).
2. What if there is no will?

If there is no will, this is known as an intestacy. Fixed rules (the intestacy rules) dictate who will inherit, and in what shares. Cohabitants do not feature in the intestacy rules and so will not inherit on this basis.
3. What other options do I have?
If there is an intestacy, or there is a Will but you receive inadequate (or no) provision, the law may step in to assist you:
1. If you have been cohabiting with the Deceased person for at least 2 years, then the Inheritance (Provision for Family and Dependents) Act 1975 might enable you to claim reasonable provision from the Estate. Whether you get anything and if so, how much you might be awarded by the court, is in the discretion of the judge hearing your case. So it can be difficult to assess what you might receive. In broad terms, the longer you were cohabiting and the greater your level of financial dependency on the Deceased, the more likely you are to receive a significant share of the Estate.
2. Any children of the deceased may be financially well provided for under the intestacy rules, or alternatively may also have a claim under the Inheritance Act. Things can get complicated if your claim as cohabitee conflicts with what provision is made for any children – this is particularly common if there are older children or children from another relationship.
3. In relation to any jointly owned property, you may be able to rely on the remedies discussed above.

What steps can I take to protect myself as a Cohabitant?

There are some relatively straightforward steps that Cohabitants should consider taking if they are financially dependant on one another and/or jointly own property:

The first step is to communicate: have the difficult conversation about these issues! That will make it much easier to agree on what legal protections to put in place.
Make sure each of you makes a Will. Talk it through so everyone understands what will happen on death. Also consider putting in place powers of attorney, in case one of you loses mental capacity.
Consider making a cohabitation agreement. These can be especially helpful to ensure suitable financial arrangements and living arrangements are provided for on separation – for example providing for ongoing occupancy of a property or division of financial responsibilities and shared assets. They can also assist with co-parenting arrangements for cohabitants who have children.
In relation to jointly owned property, make sure the right documents are in place to confirm ownership shares, especially if there has been unequal payment towards mortgage or one party has funded the deposit or renovations.

Preparation is key and we can help. If you're considering moving in with your partner or already cohabiting get in touch for advice.