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While the distinction between the rights of married couples, civil partners, and cohabitants was once defended by reference to social attitudes, cohabitation has gradually become more accepted by society. Whilst married and civil partnership couples remain the most common family type, cohabitating couples have been increasing in popularity with nearly 3.5 million people cohabitation.
This essay will aim to critically examine the legal rights of cohabitants. Focusing primarily on the rights of cohabitants in the event of relationship breakdown or death.
‘Cohabitants’ is a term used to describe couples living together but who are not married and who are not in a civil partnership.
When a cohabitant dies without leaving a valid will, their property (estate) must be shared out according to specific rules. These rules are referred to as the rules of intestacy. A person who dies without leaving a will is referred to as an intestate person.
Cohabitants have been inconsistently defined within the law leading to confusion surrounding where they stand in the eyes of the law. According to NatCen, a survey carried out for the British Social Attitudes Survey found that 46% of people in England and Wales believed that cohabiting couples form a ‘common law marriage’. This figure remains largely unchanged since 2005. Those actually living in cohabiting couples believe in the common marriage myth. The result in not understanding the legal status of cohabiting couples most often results in severe hardship, especially for the more vulnerable party. Data clearly shows that almost half of people living in England and Wales falsely believe in common law marriage, when, in reality, cohabitation grants no general legal status to a couple policy has failed to keep up with the times.
As cohabitants do not have any legal rights or responsibilities this generally means they are not entitled to anything if their partner dies without stating in their will that they are. Anything that is held jointly, such as a bank account, means the surviving partner can still access the money in the account. However, if the money in the account could be claimed as part of the deceased partners’ estate. If the property is legally owned as joint tenants (instead of tenants in common) then this should pass to the surviving partner.
Common law marriage is the belief that after a certain number of years, a couple living together (cohabitants) gets the same legal rights as if they were a married couple or a civil partnership.
In 2018, research carried out by Direct Line showed that 38% (more than one-third) of cohabiting couples in the UK were unsure of what their rights would be if their partner passed away without leaving behind a will and 1 in 10 couples believed that they would automatically inherit their partner’s share of any property that they in lived in together. This can raise serious issues as only 26% of cohabiting couples have drawn up a will. This leaves millions of people stuck when their partner dies and they didn’t understand their legal rights or lack thereof.
Whilst social attitudes towards cohabitation have changed greatly, the law has struggled to embody these new social attitudes. Some view cohabitation as the ‘responsibility-free’ alternative to marriage or civil partnership. However, this view has caused some to reject the claim that cohabitants deserve the same rights as married couples. Therefore, the law treats cohabitants markedly to married couples and civil partners on the basis that cohabitants should seek to avoid the legal repercussions of legal and permanent relationships. This has resulted in cohabitants’ inheritance being inconsistently applied. Especially when most ‘rights’ are granted based on common law and not set in statute law.
The inheritance rights of cohabitants have been criticized as being ‘incomplete’ and unfair in comparison to the rights of married couples and civil partners especially when their partner dies intestate. Despite this, the Law Commission has concluded that there is no need for reform which results in cohabitants generally being denied any entitlement to the property of their cohabitants. Surviving cohabitants are excluded from intestacy law and the current law’s limited approach towards intestate partners places cohabitants in a disadvantaged position compared to spouses and civil partners. Only married couples or civil partners can inherit under the rules of intestacy only if they are actually married or in a civil partnership at the time of death, this means cohabitating couples cannot inherit under the rules of intestacy. The Inheritance (Provision for Family and Dependents) Act 1975 only grants ‘dependents’ (usually children) the right to claim a deceased cohabitant’s property. The surviving cohabitant must prove that they were supported by the deceased or residing together for at least two consecutive years.
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