Living with law


When it comes to cohabiting with your partner, Derek Inkpin from local solicitors Wiseman Lee asks whether the law needs to catch up with the way many of us now live our lives

It’s easy, isn’t it? If you live together as a couple, you are cohabiting. No formal marriage ceremony. The morality or otherwise of cohabitation has long since been seen as unimportant. For some, the word ‘marriage’ makes people shudder at the thought. Why ruin a good relationship by getting married?

On the other hand, lurking somewhere deep in the human psyche is the apparent desire to ‘cement’ a relationship by getting hitched, whether it’s a heterosexual or same-sex relationship.

Aren’t we all just relaxed about this now? Whatever you and your domestic partner decide is your decision. Nobody should interfere, let alone debate it as a serious subject in the pub because all that stuff from yesteryear about living together is so old hat.

In 2020, there were 3.5 million cohabiting couples in England and Wales. In 1996, there were 1.5 million such couples, an increase of 137%. In today’s Britain, nearly 50% of the babies born are to people who are not married, but it does depend on what ethnic group you come from because, for example, Asian mothers are more likely to be married. A 2006 study found that cohabiting couples with or without children are the fastest-growing family type in the UK.

The differences between children born in or outside marriage ceased to have importance in the sexual revolution of the 1960s. Has the cohabitation trend caught up with law? This is where the serious debate begins because the law treats unmarried couples differently when it comes to the transfer of assets between them for capital gains tax or inheritance tax purposes. If you die cohabiting with your ‘common law spouse’, leaving children without a will, you are intestate and your estate goes to your children, not the person with whom you may have had a long-standing relationship. As a couple, you may have purchased a house together, but one-half of the property may pass to the children who insist on the home being sold, thereby forcing the surviving co-owner to sell the property at a difficult time when the grief of death is still being experienced.

There is recognition that living together as a married couple is accepted by the state because, for social security purposes, since 1977, this has affected the calculation of means-tested benefits. However, if a cohabiting couple bring their relationship to an end, the ownership of assets between them will be decided according to property law. The courts have no discretion to reallocate assets as occurs on divorce. So cohabitation can work well for the couple concerned, but the law, you may decide, needs to catch up with the way that many of us live now.

Wiseman Lee is located at 9–13 Cambridge Park, Wanstead, E11 2PU. For more information, call 020 8215 1000