Definition of cohabitation — overview

The definition of cohabitation under statute and case law, and considered in human rights decisions, has significant implications for cohabitants.

Statutory definitions

Cohabitants are treated differently from married couples, in particular in their property rights, their rights in relation to children and their rights on death.

The Family Law Act 1996 defines a person’s right of occupation in the home in which they have lived with a partner, according to the nature of the relationship.

Unmarried couples who have not been engaged have to rely upon the rules of equity to establish their property rights. Engaged or formerly engaged couples can determine their property rights under the Married Women’s Property Act 1882 and subsequent legislation.

Parents have a financial responsibility to provide for their children, irrespective of the relationship between the parents. The Child Support Act 1991 usually deals with child maintenance issues. The Children Act 1989, Sch 1 provides discretionary powers to make orders for capital and income relief. For children born before 1 December 2003 (or 4 May 2006 in Scotland), where parents are unmarried, the father does not automatically have parental responsibility.

Unmarried couples are treated less favourably than married couples for tax relief allowances but may benefit from additional CGT allowances if they have two separate residences.

A cohabitant may be able to claim against an estate pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision. Section 1A entitles a cohabitant to claim as of right, if living in the same household as the deceased for two years before the death as husband or wife, the relationship being determined by the range of relationships, not necessarily requiring a sexual relationship. Alternatively, under s 1(1)(e), an applicant must show that they were being wholly or partly maintained by the deceased immediately before the death.

A cohabitant who has lived together with the deceased in the same household as husband or wife for two years or more may bring an action for damages under the Fatal Accidents Act 1976.

Definitions of cohabitation in case law

The various factors that show a couple were living together as husband and wife include:

• living together in the same household

• the way in which financial issues are being handled

• a sexual relationship

Other matters may be taken into account by the court. In determining whether there had been pre-marriage cohabitation, the definition is slightly widened so that it involves a mutual commitment by two parties to make their lives together in emotional and practical terms. A similar approach is likely to be taken regarding pre-civil partnership cohabitation. There is often a pooling of financial resources.

Implications of human rights decisions

The European Convention on Human Rights expresses rights affecting cohabitants.

Article 8 includes protection for the right to respect for private life, which comprises, to a certain degree, the right to establish and develop relationships with other human beings. It also protects the right to respect for family life, which is not confined solely to marriage-based relationships, but may encompass other de facto family ties where parties are living together outside marriage.

Article 12 concerns the protection of marriage as the basis of the family. Therefore, the right to marry is not absolute.

Article 14 is intended to protect the rights and freedoms under the Convention but does not presuppose a breach of other articles before it comes into play. In a European Court of Human Rights decision, no breach of Art 14 was found where there were differences in law relating to property rights of married and unmarried couples.