The Invisible Partner – Why Women in Cohabiting Relationships Remain Legally Exposed

This is a story we hear all too often in probate disputes. In the context of International Women’s Day, stories like Kate’s are a stark reminder of how easily women can be left financially exposed when the law fails to reflect the reality of modern family life.

Women are disproportionately affected by financial instability following a partner’s death. These vulnerabilities are rooted in the lived realities of many women: career breaks to raise children, part‑time work to support the family, and years of unpaid domestic and emotional labour, all contributing to lower earnings and reduced financial independence.

Kate’s experience is not an anomaly — it is a common occurrence, driven by widespread misconceptions about the legal status of cohabiting couples.

The Common Law Marriage Myth

Ask almost any cohabiting couple (46% to be exact) and they will say the same thing: ‘We’re common-law married.’ The common law marriage myth is the false belief that couples who live together for a certain period of time, or who have children together, automatically gain the same legal rights as married couples.  This is a widespread myth, assuming a legal status that simply doesn’t exist in English law. 

In reality, if someone passes away without a Will, a cohabitant has no automatic right to inherit, regardless of the length of the relationship. This misunderstanding often means couples never make Wills, leaving a huge number of people vulnerable on the death of their partner. 

The Role of the Inheritance (Provision for Family and Dependants) Act 1975

The 1975 Act exists to provide a safety net where the intestacy rules or a Will do not provide reasonable financial provision to certain categories of people, one of which is cohabitees, who lived with the deceased for two years immediately prior to death.

A safety net is not, however, a substitute for proper rights. The need to bring a claim under the Act forces cohabitees to pursue a claim against their loved one’s estate at a time of grief and imposes the unnecessary stress of litigation on them, in an attempt to achieve an outcome that is freely given to an equivalent spouse. Relying on a safety net instead of proper legal rights creates a risk of financial instability in the period between death and a successful claim.

The Inheritance Act recently turned 50 years old. It is becoming clearer than ever that the Act remains stuck in the shadow of the 1970s family model. When the Act was passed, most women were married, and cohabiting was outside the norm. Today, millions of people are cohabiting. This leaves a significant number of people vulnerable to the gaps in a law that cannot keep up with the social reality.  This gap in protection is precisely why so many cohabitants find themselves relying on the 1975 Act.

The Gap between the Spouse and the Invisible Partner

Despite the value in the 1975 Act providing a pathway for provision for cohabitants, the Act creates a stark difference between the entitlement of a spouse and that of a cohabitant, continuing a line of outdated thinking that a cohabitant is somehow less important than a spouse.

If a spouse is left out of a Will, their entitlement is based on principles of divorce law. These focus on equality between partners, needs and sharing, irrespective of maintenance.   

If a cohabitant is left out of a Will, or if there is no Will, they will not only have to face scrutiny of their relationship to prove it was akin to a marriage or civil partnership, but they will also need to prove they have a financial need or were being maintained by the deceased. For example, a spouse may receive a property outright, where a cohabitant may receive only a limited right to remain there temporarily. For cohabitants, it is deemed they are only entitled to what they reasonably need. But where does this account for emotional and domestic labour, rather than just financial?

Conclusion

Being left out of your partner’s Will, or left with nothing where they did not make one, can cause significant emotional distress – yet it is far from uncommon.

This International Women’s Day was the perfect occasion for cohabitants to take the time to protect themselves and put themselves first for once: encourage open communication, discuss Wills and explore cohabitation agreements. The best way to guard against future claims is to take steps to ensure fair provision is made for both parties, before the worst happens. We often share our lives with others but, as women, feel a stigma around discussing finances and provision. We should not be afraid to have these difficult conversations. It is better to have a moment of discomfort when your loved one is still around, than face the consequences of an intestacy, and the prospect of bringing a claim, at a time when you are grieving. 

Taking these steps now can prevent avoidable hardship later and ensures relationships are protected in law, not just in practice.

By Lauren Lucas, Trainee Solicitor at Irwin Mitchell