Cohabitation agreements and reform in England and Wales

Around 3.5 million couples in England and Wales live together without marrying, and a good number of them assume that time alone will eventually hand them the protections a spouse enjoys. It will not. A cohabitation agreement, often called a living together agreement, remains the only document that lets an unmarried couple fix in advance who owns what share of the home, who is liable for what, and what happens if the relationship ends. The Ministry of Justice has now opened a consultation on building statutory protection for cohabitants, and the coverage around it has left plenty of people believing the gap has already closed. It has not. This guide sets out what cohabiting couples actually have, what the reform would change, and why the written agreement still does the heavy lifting.

What a cohabitation agreement actually does

A cohabitation agreement is a contract between two people who live together, or intend to, recording how they hold their property and money and how both will be divided if they separate. It carries no special statutory status. It operates as an ordinary contract, which is both its weakness and its quiet strength: no family court discretion sits above it, so a properly drafted agreement tends to be applied rather than reopened.

It helps to separate it from two neighbouring documents. A declaration of trust deals with one thing only, the beneficial ownership of a specific property, and where it is correctly executed it is conclusive between the parties. A prenuptial agreement looks forward to a marriage or civil partnership and binds nobody outright, since Radmacher v Granatino [2010] UKSC 42 gives such agreements decisive weight only where the couple entered into them freely and with a full appreciation of the consequences. The cohabitation agreement sits between the two. It is broader in scope than a declaration of trust, and on the property side it is harder to unpick than a prenup. Most couples end up wanting both: the declaration of trust for the house, the agreement for the mortgage payments, the bills, the joint account, the car, and the deposit money a parent handed over without ever saying whether it was a gift.

The legal framework for cohabiting couples in England and Wales

Common law marriage does not exist in England and Wales. It survives as folklore and nothing else, yet it remains the single most expensive misconception in this area of practice. Length of relationship, shared children, a joint mortgage and twenty years of pooled income confer no status whatsoever.

When cohabitants separate and argue about the house, they land in the civil courts rather than the family courts, and the claim runs under the Trusts of Land and Appointment of Trustees Act 1996. Section 14 allows either party to apply for a declaration as to beneficial interests and an order for sale. Where the couple signed an express declaration of trust, that document governs the outcome, subject only to fraud, mistake or a later valid variation. Where they did not, the court works through resulting and constructive trust principles from Stack v Dowden [2007] UKHL 17, refined in Jones v Kernott [2011] UKSC 53. Joint legal owners are presumed to hold in equal shares, and displacing that presumption requires evidence of a contrary common intention, which is exactly the evidence nobody creates while the relationship is going well. Section 53(1)(b) of the Law of Property Act 1925 requires any declaration of trust over land to be in writing and signed, and Hudson v Hathway [2022] EWCA Civ 1648 confirmed that a signed email can satisfy the parallel writing requirement in section 53(1)(c) for disposing of an existing equitable interest.

Children sit in a separate stream. Schedule 1 to the Children Act 1989 lets a parent seek lump sums and a settlement of property for a child's benefit, though housing provided that way usually reverts to the paying parent once the child reaches independence. It supports the child, not the ex-partner. On death, the intestacy rules in the Administration of Estates Act 1925 pass the estate to a spouse or civil partner, then children, then parents and siblings. A surviving cohabitant appears nowhere on that list. The Ministry of Justice consultation on financial provision when relationships end contains the government's own account of how thin the current protection is.

What the reform consultation proposes, and what it changes today

The consultation A fairer end to relationships was published on 5 June 2026 and closes at 11:59pm on 14 August 2026. It runs across three connected areas. The first is financial remedies on divorce and dissolution, where the government floats a codification model that would put settled case law on needs and sharing into statute, alongside qualifying nuptial agreements capable of binding the court in a way no prenup does at present. The second is a statutory framework for cohabitants on separation. The third is inheritance, where qualifying cohabitants would gain automatic rights on intestacy.

The cohabitation proposals are deliberately narrower than the divorce regime. Eligibility is drawn around adults in a long term interdependent relationship who have lived together for three years or more, or who live together and share a child, with more limited awards for shorter relationships. The starting point stays that each person keeps what they legally own, departed from only where necessary to meet defined needs, assessed more tightly than on divorce. The intestacy strand is stricter again, with the government favouring a marriage equivalence test rather than the wider separation threshold.

None of this is law. A consultation is the opening move, not the closing one. Responses have to be analysed, a government response published, a bill drafted, then taken through both Houses, then commenced. Nothing in the current framework has been amended, no transitional provision exists, and no couple has acquired a right they did not have before. Anyone relying on the reform to protect them is relying on legislation that has not been written.

The family home, where cohabitation disputes actually begin

Almost every serious cohabitation dispute traces back to a single unanswered question at the point of purchase. If the property goes into joint names, the TR1 transfer form contains a panel where the buyers state how they hold the beneficial interest, as joint tenants, as tenants in common in equal shares, or on some other basis they set out themselves. Conveyancers ask. Couples in the middle of a move frequently leave it blank or tick the default without reading it, and Land Registry Form JO exists precisely because so many did.

The unequal deposit causes the most damage. One partner puts in the whole deposit, or a parent gifts it, and the couple agree verbally that this will be recognised if the house is sold. Three years later there is no written record, and the joint tenancy on the TR1 says equal shares. The verbal understanding is worth almost nothing against a signed transfer form. Where money came from a family member and was genuinely a loan rather than a gift, documenting it properly through a private loan agreement between individuals removes the argument entirely, because the debt is then owed by the couple before any equity is divided.

Renting raises a different problem. Where the tenancy is in one partner's name alone, the other has no security of tenure and can be asked to leave with no notice period grounded in housing law. Where both names appear, both remain jointly and severally liable for the whole rent after one moves out, which surprises people every time. The rules on periodic tenancies since the Renters' Rights Act changed how these arrangements end, and a couple planning to live together in rented accommodation should decide at the outset whose name goes on the agreement and what happens to the deposit if one of them leaves.

Death, intestacy and the six month clock

The intestacy position is the harshest part of the current law. A cohabitant of thirty years whose partner dies without a will inherits nothing automatically. The estate passes to the deceased's children, or if there are none, to parents, then siblings, then more distant relatives. The survivor may find the family home passing to adult stepchildren who have no interest in letting them stay. This is why a properly executed last will and testament for England and Wales matters more for an unmarried couple than for a married one. It is not tidying up. It is the entire protection.

The fallback is litigation. Section 1(1A) of the Inheritance (Provision for Family and Dependants) Act 1975 allows a cohabitant to claim reasonable financial provision from the estate, but only where they lived with the deceased in the same household as if they were spouses or civil partners for the whole of the two years immediately before the death. Two years less a fortnight fails the test. The award is limited to maintenance, unlike a spouse's claim, so the survivor is arguing for enough to live on rather than for a share of what the couple built.

Section 4 of the 1975 Act gives claimants six months from the date on which representation was first taken out, meaning the grant of probate or letters of administration. After that, permission is needed and the court has a strict approach. A grieving partner who spends eight months negotiating informally with the family can find the claim procedurally dead before it starts. A single page in a will avoids all of it.

Putting the paperwork in place with Captain.Legal

Captain.Legal handles the documents that surround a living together arrangement in England and Wales, drafted to current wording and delivered ready to sign. The route through the platform is a guided questionnaire rather than a blank template. For a will, you set out executors, beneficiaries, any guardianship provision for children and a residuary gift, and the attestation clause is generated with the correct wording for two witnesses under the Wills Act 1837, along with instructions on who cannot witness.

The same approach covers the documents couples typically need alongside it. A property and financial affairs lasting power of attorney is worth as much as the will for an unmarried couple, because a partner has no automatic authority to deal with your bank or your share of the house if you lose capacity, and the alternative is a Court of Protection application. Where a rented property needs to move into the remaining occupier's name after a separation, a deed of assignment of tenancy records the transfer with the landlord's consent as section 15 of the Housing Act 1988 requires.

Every document downloads in both Word and PDF. The Word version matters here, because cohabiting couples almost always have a clause that does not fit the standard pattern, whether that is a parental contribution, a business interest or a child from a previous relationship. Edit it, print the final version, then sign it with the formalities the document itself sets out.

Mistakes that leave cohabiting couples exposed

The first and largest is treating the reform as though it had already happened. The second is leaving the beneficial ownership question unanswered on purchase, either by ignoring the TR1 declaration or by signing it without understanding the difference between a joint tenancy, where the survivor takes the whole property automatically, and a tenancy in common, where each share passes under the will. The third is relying on a verbal promise about the house. Practitioners hear the same sentence constantly, that he always said the deposit would come back to me, and it carries no weight against a signed transfer.

The fourth catches people after separation rather than during it. Marriage revokes an existing will under section 18 of the Wills Act 1837, but a cohabiting relationship ending does nothing at all. An ex-partner named as sole beneficiary and executor stays named until the will is changed, and estates do pass that way. The fifth is the pension. Most occupational and personal schemes pay death benefits at the trustees' discretion, guided by an expression of wish form that many people fill in once and never revisit. An unmarried partner who is not named has to persuade trustees they were financially dependent, which is a much weaker position than simply appearing on the form.

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