What are the rights of an unmarried couple?
Unmarried couples are often unclear on what their legal rights may be. It is important for cohabiting couples to know that their legal rights are very different from those of married couples.
With married couples there is an ongoing financial relationship between the spouses, however this is not automatically the case with unmarried couples. If a cohabiting relationship were to break down they have no automatic rights over each other’s solely owned assets such as property, savings, pensions etc.
It is a common myth that if a couple live together for long enough, they will automatically be given certain legal rights by being a ‘common law wife’ or ‘common law husband’, however, this isn’t the case. A cohabiting couple will only have rights to jointly owned property.
Here are some explanations on the most common areas relating to the rights of unmarried couples:
Property
Many unmarried couples will own a home together and depending on how the property is legally held, will affect how the property is split when separating.
If the property is held in joint names then the starting point is that the proceeds of sale will usually be divided equally between the couple. If the property is owned in one individuals name, then the starting point is that all of the equity in the property should be retained by that individual.
The individual that does not own the property could potentially still make a claim if they can prove financial contributions, for example they can prove that they contributed towards the deposit when the property was purchased and there was an intention between the parties that this contribution should be returned in the event of separation.
Intention is key here. If the individual who does not own the property can categorically prove that despite the property being owned in the other individuals sole name, there was an intention for any equity to be shared, then this will be strong evidence for their case.
Children
If there are dependent children of the relationship, one of the most important aspects of the separation is usually working out the duration and frequency of the contact between the children and both parents.
Sometimes it is possible for parties to reach an agreement about the child arrangements without the need for legal intervention however, this is not always the case.
If you cannot agree how much time the child(ren) should spend with each parent, then it is important that you seek independent legal advice from a family solicitor. A family law specialist can help you negotiate with the other parent to try and reach an agreement, and if this is not possible, they can offer advice about potentially making an application to the court for a child arrangements order.
Visit our child arrangements page to find out more.
Finances
In England and Wales the law treats unmarried couples as two separate individuals. This means that assets will remain in the ownership of whoever’s name they are in. If an asset is held in joint names, it will generally be divided equally.
For example, an unmarried person cannot claim ongoing financial maintenance from an ex-partner in the same way that a married person may be able to.
However, if there are children of the relationship, then the primary carer for the children should be able to claim child maintenance from the non-resident parent through the Child Maintenance Service. Please visit our children matters page for further advice on circumstances where you can apply to the family court for child maintenance from the non-resident parent under Schedule 1 of the Children Act.
Unmarried couples can enter into a cohabitation agreement which will set out who contributes to what during the relationship and what happens if the couple were to separate.
What is a cohabitation agreement?
A cohabitation agreement is a legally binding contract between two unmarried adults who live together. It lays out the specific rights and responsibilities for finances and property.
Entering into a cohabitation agreement can help you prevent costly court proceedings if the relationship breaks down in the future.
What does a cohabitation agreement include?
A cohabitation agreement may address any or all of the following topics
- Inheritance and wills
- Division of shared assets
- Provision for shared children of the relationship
- Provision for pets
- Shared and individual owned property
- Shared and individual owned businesses
- Pension schemes and savings
It is important that your cohabitation agreement is drafted/reviewed by a solicitor before both parties sign the document. This is to ensure that it meets the needs for both individuals while clearly stating the responsibilities for each person.
This agreement can be amended at any time if both parties feel this is necessary.
How do unmarried couples make a cohabitation agreement?
It is important to discuss with each other and agree on what you both want to include in the cohabitation agreement before it is drafted and consider outcomes if you were to separate such as what will happen to bank accounts, property etc.
Although a cohabitation agreement can be made without legal expertise it might not be suitable for your needs so seeking advice from a cohabitation specialist is highly advised.
It is also recommended that both parties seek independent legal advice before entering into a cohabitation agreement. One solicitor will draft the document, and another firm of solicitors should check the document to avoid a conflict of interest. Once agreed both parties will sign the legally binding document.
How our solicitors can support you with your cohabitation rights
Our specialist family law solicitors have in-depth knowledge and experience in advising on the legal rights of unmarried couples and can assess your individual circumstances to advise you on the best way forward.
We can help prevent issues through creating a cohabitation agreement which will set out who contributes to which elements during the relationship and what happens if the relationship breaks down.
