Unmarried Couples Legal rights.
If you are an unmarried couple but are cohabiting it is important to know your legal rights.
Unmarried but cohabiting couples make up one of the fastest-growing family types. Despite this, the law does not yet recognise cohabiting couples like it does married couples.
When married couples divorce, they can apply to the Family Court and the aim of the Court is to achieve fairness. In doing so, often the ‘needs’ of the parties and any children are prioritised. When cohabiting couples separate, the relevant law is civil law as opposed to family law. As a result, the fairness of the outcome is not relevant. This can have severe implications for those who have lived together for a long time or those with children.
What happens when a cohabiting couple breaks up?
The law for unmarried couples is very limited. Contrary to popular belief, there is no such thing as a ‘common law marriage’ in England & Wales. The law does not yet protect those who live together or cohabit and are not married. This is irrespective of how long a couple has been living together or whether they have children. Cohabiting couples simply do not have the same rights as married couples when a relationship ends.
Consequently, often what will happen when a cohabiting couple separates depends on their specific circumstances.
Whether you are looking to move in with a new partner, or you have recently separated, our Specialist Family Law Solicitor is here to advise you of your rights.
Do you want to know what legal protection is available to you as a cohabitee?
Do unmarried couples have any legal rights?
Cohabiting couples are not legally recognised as a couple. Therefore, there is no legal right available to them by virtue of their relationship.
As such, when an unmarried couple’s relationship breaks down, the Court’s powers are limited. In short, separating couples can ask the Court to address:
- The ownership and sale of property. This will be based on the principles of Trust and Property Law.
- In certain circumstances, financial support may be available for the benefit of the children. This is known as a Schedule 1 claim. This is separate from statutory child maintenance which may be available in accordance with the Child Maintenance Service rules.
Unfortunately, unlike married couples, unmarried couples can not make a claim for maintenance or against the other’s savings, investments, or pensions for example. The Court will also not need to consider all the circumstances, nor the fairness of any outcome. This can be far from satisfactory.
Do unmarried couples have legal rights on the death of the other?
Cohabitees have no automatic right of inheritance. Therefore, unless you are specifically named in a will, as a cohabiting partner you will not be entitled to a share in your deceased partner’s estate, nor will you be able to make a claim.
In limited circumstances, however, you may be able to apply to the Court for some provision as a financial dependent of the deceased. These applications can be costly and lengthy, and it is far better to put in place arrangements to avoid this. You should therefore ensure that up to date wills are in place.
What happens to children when a cohabiting couple separates?
The law in relation to the arrangements for children is the same for married and unmarried couples. That is because the law is the right of the child and not the parents.
The Court expect parents to reach an agreement between them wherever possible. Generally, the Court would also expect a child to maintain a relationship with both of their parents and for both of their parents to be involved in their upbringing.
If parents, married or unmarried, cannot reach an agreement between them, an application can be made to the Court. The Court will then decide any arrangements that simply cannot be agreed. See our Child Arrangements page for more information.
What happens to the house, car, and other assets when a cohabiting couple separates?
For unmarried but cohabiting couples, the starting point is that any property or assets are owned by the legal owner. The legal owner is then entitled to the full value. For a house, this will be whoever is registered on the deeds of the house. Likewise, for a car, this will be whoever is named on the vehicle logbook (the V5C). For other assets, this is usually whoever paid for the asset or received it as a gift.
In some circumstances, a non-legal owner may have a beneficial interest in a particular asset. This can arise where it can be shown that a trust has been created. This gives the non-legal owner a right to some or all of the value. In order to show this, there usually needs to be written evidence or other evidence showing agreement alongside particular conduct and/or financial contribution.
Trust and Property law is a complicated and risky area. Different cost rules are also applied in any Court application. This means if you make an application and are unsuccessful, you will likely be responsible for your and the other party’s costs. Sometimes, this could exceed the share you will receive. As a result, we always recommend that specialist legal advice is obtained to discuss the chances of success and likely cost implications as early as possible.
Have you recently separated? Would you like to know how your circumstances would be considered?
Will the legal rights of unmarried couples change in the future?
We certainly hope so. The Law Commissioner recommended a change in the law and the rights of unmarried couples in 2007. Since this time, Resolution has been campaigning for cohabiting couples to have at least basic rights following relationship breakdown or the death of a partner.
As a result, in February 2020, the Cohabitation Rights Bill had its first reading. The second reading is awaited. Regrettably, any changes are therefore unlikely to be any time soon.
As a cohabitee, what can I do to protect myself?
- If you are renting together, make sure you are named on the tenancy agreement as joint tenants.
- If you are buying a property together, make sure you are named on the deeds. Also, if you are making unequal contributions (for example, paying more towards the purchase price or towards the mortgage repayments) and you intend to own the property in unequal shares, make sure you have a Declaration of Trust in place. An understanding between you that you ‘will get back what you put in’ will not be sufficient.
- Put in place a Cohabitation agreement. This will set out both of your intentions around property, finances and how you will support your children if you separate.
- Take out life insurance.
- Create a will and ensure you and your partner review your assets, such as your pensions, to see if any additional arrangements can be put in place, for example, appointing your partner as a beneficiary if necessary.
Get in touch for advice and support with making the necessary arrangements for a Declaration of Trust or Cohabitation Agreement.
How can our Specialist Family Law Solicitor help you?
Keats Family Law are experts in all aspects of divorce and separation.
Whether you are considering moving in with a new partner, or you have recently separated, it is beneficial to get early legal advice. If you want to understand your rights, the steps you should be taking, or how the Court may consider your specific circumstances, we are here to help. In the first instance, we recommend that you attend our initial Fixed Fee Appointment to discuss your options. During this appointment, we will use our expertise and knowledge to give clear, realistic, and practical advice based on your specific circumstances.
For new (or existing) cohabiting couples needing a cohabitation agreement, we will advise you of the terms needed to regulate your arrangements and set out the areas that should be covered in any cohabitation agreement. We can then prepare this document for you.
For cases following a relationship breakdown, we will provide honest and straightforward advice about your legal rights based on your specific circumstances. We can also advise on your chances of success in pursuing a claim and set out the associated risks where necessary.
Contact us for advice and support on the legal rights of unmarried couples on separation.
Other Resources.
Visit Resolution’s website to support Resolution’s Campaign for the basic rights for cohabiting couples upon relationship breakdown or death of a partner.
Visit the Parliament website to follow the progress of the Cohabitation Rights Bill.
Child Maintenance Service calculator to help you calculate your Child Maintenance obligations or requirements.
To discuss child maintenance arrangements and how to apply, contact the Child Maintenance Options on 0800 953 0191.