Different Types of Cohabitation: What Legal Protections Exist for Families with Children?
Under the Children Act 1989 and the Children and Families Act 2014, a child’s welfare is the central consideration in any legal decision. Courts will look at factors such as who the child’s legal parents are and the circumstances they are in, particularly during life events like parental separation or the death of a parent.
This guide from our family law experts at Clough & Willis explains the different types of cohabitation status and how these affect parental legal rights and responsibilities. It also outlines how legal documents can set out a parent’s wishes regarding the care of their child if their relationship ends or if one parent dies.
What are the different types of cohabitation status?
Married couples
Both opposite-sex and same-sex couples can marry, and this legal status provides important protections for partners. Where children are concerned, a married father automatically shares custody rights with the mother. Unless a court order states otherwise, both parents hold equal rights to custody, and the father has the same entitlement to see the child as the mother. If a child is born within a marriage, both parents automatically acquire parental responsibility.
In same-sex marriages, both partners may share legal responsibility if, for example, they adopted the child together. Where only one partner is recognised as a legal parent on the child's birth certificate, the other can obtain legal rights by entering into a parental responsibility agreement or by taking other legal steps to secure their position.
Civil partners
A civil partnership is a legal status available to both opposite-sex and same-sex couples and provides protections and benefits that are broadly similar to marriage. Unlike marriage, however, a civil partnership has no religious element. Couples may choose this option for a range of personal or practical reasons, such as preferring a non-religious union, wanting to formalise their relationship without marrying or feeling that civil partnerships better align with their values.
As with marriage, if both parents have parental responsibility, they share equal rights to custody and care of their child. Fathers who are in a civil partnership with the mother at the time of the child’s birth automatically acquire parental responsibility.
Cohabiting couples
Unmarried couples who live together are sometimes thought to have the same rights as those who are married, often referred to as a “common law marriage”. In reality, there is no such legal status. Simply living together, regardless of how long, does not give partners the same protections as marriage or civil partnership. This can cause issues if the relationship ends or if one partner dies.
When it comes to children:
Mothers automatically have parental responsibility from birth. Unmarried fathers do not automatically gain parental responsibility, even if they are the biological father. They can obtain it in one of three ways:
- By being named on the child’s birth certificate (for registrations made on or after 1 December 2003).
- By entering into a formal parental responsibility agreement with the mother.
- By applying to the court for a parental responsibility order.
If parental responsibility is not established, the father has no automatic right to be involved in key decisions about the child’s upbringing, such as education or medical treatment, although he will still be required to provide financial support. Because of this, cohabiting couples often face a less secure legal position than married couples or those in civil partnerships. Legal advice can help clarify parental rights and responsibilities, and provide certainty for both parents.
What is a cohabitation agreement?
A cohabitation agreement is a written document that sets out what each partner expects from the relationship and what will happen if the relationship ends or if one partner dies. It provides clarity on financial matters and parenting responsibilities for unmarried couples, particularly those with children. The agreement can cover issues such as how property is owned, how bills are paid and how child support or living arrangements will be handled.
While it is possible to include details about where children will live and how they will be cared for, these parts of the agreement are not legally binding in the same way as financial provisions. The family court will always make its own decision about arrangements for children, based on what it considers to be in their best interests. Even so, including parenting expectations in a cohabitation agreement can help reduce disputes and make each partner’s intentions clear.
What are the benefits of having a cohabitation agreement?
A cohabitation agreement that is legally binding can give couples a clear framework for how their relationship will be managed, particularly in relation to finances and children. It can set out who is responsible for household expenses, how property is shared and what will happen if the relationship comes to an end. By having these arrangements written into a formal written agreement, couples reduce the likelihood of disputes in the future and gain more certainty about their legal and financial position. Both partners are advised to obtain independent legal advice before signing to make sure the agreement is fair and enforceable.
That said, there are limits to what such an agreement can achieve. It cannot create parental rights that do not already exist in law, nor can it override decisions made by the courts in relation to children or financial matters. It also does not provide the wider rights that come automatically with marriage or civil partnership. Instead, a cohabitation agreement is best viewed as a practical tool for unmarried couples who want to record their intentions and protect themselves by setting out clear expectations.
How wills and parental agreements help
Wills
A will can be used to name a testamentary guardian who would take on parental responsibility for a child after the testator’s death. This allows parents to record who they would like to care for their child if they are no longer alive. However, a will cannot remove or override the parental responsibility of another person who already holds it.
A guardian named in a will only steps into this role if all those with existing parental responsibility have died. If a disagreement arises between a surviving biological parent and a named guardian, or if there is any uncertainty about who should hold responsibility, the decision will rest with the court. In such cases, the court will consider the child’s welfare above all other factors when determining the outcome.
Parental agreements
Parental agreements give separating parents a structured way to set out how they will share responsibility for their child. These written plans can cover living arrangements, how time with each parent will be divided, financial contributions and how day-to-day decisions will be managed. They can also include agreed methods of communication, helping to reduce conflict and provide a more stable environment for the child. While not automatically legally binding, parental agreements can be used as a clear reference point and may be taken into account by the court if disputes arise.
Why seek legal advice?
Family arrangements can raise complex legal issues, particularly where children are involved. Without professional guidance, parents may be unclear about their rights or face disputes over responsibility, finances or child arrangements. By speaking to a family law solicitor, you can record agreements that reflect your wishes, protect your position and reduce uncertainty. Legal advice can also help you understand the limits of cohabitation agreements and identify where further steps, such as obtaining parental responsibility or updating your will, may be necessary.
Get in touch
At Clough & Willis, our family law team provides clear and practical advice on all aspects of cohabitation, marriage and civil partnership. If you would like to discuss your situation or put legal protections in place for your family, call us on 0800 083 0815 or complete our online enquiry form to request a call back.
