Not married and separating – what are your rights Q&A?

Unmarried couples living together (cohabiting) have more limited rights to those within a marriage or civil partnership. They also have less responsibility to each other in the event of a breakup.

Many people believe that couples who have lived together for a certain number of years are ‘common law’ married. This is a myth and not the case. Unless there is a Cohabitation Agreement or a Deed of Trust in place addressing assets, unmarried couples have little in the way of rights.

Some of the most common questions our family law team gets asked by unmarried people who are separating are addressed below:

We are not married and are splitting up – what happens to the house?

When a marriage ends in divorce, a court will focus mainly on the needs of each individual rather than who owns what share of a property. An example of this is, where a wife who is the main carer for the children is awarded the family home as her needs will be deemed greater.  

This principle, however, does not apply to unmarried cohabiting couples and the main – possibly even the only – factor taken into account will be what was agreed or intended at the time the property was purchased.

Property in one person’s name:  If a person has moved their partner into their house and the relationship breaks down, more often than not the partner who moved in has no claim upon the property. However, there are limited circumstances where they might be able to claim an interest in the property or a right to stay living there. It could be that they have contributed to the equity held in the property (e.g. paying towards the mortgage or building an extension) and therefore may be able to establish a share.  If you have children together, again, specific claims can be made to protect the housing needs of the children whether the property is in one person’s name or indeed joint names.

Unmarried couple – property in joint names:  Usually the property and title deeds show the ownership of the property and it is a difficult task to convince a court to look beyond the title deeds. Again, the legal position isn’t always clear cut. Ordinarily, if a couple are both named on the title deeds, they will be entitled to an equal share of the value if it is sold. This can, however, be overruled if it can be established that the common intention of the parties later changed. For example, in the 2011 case of Jones -v- Kernott the property was owned 50:50 on the title deeds, but one partner had clearly made less of a contribution to the property. In that case the Supreme Court ruled that the intention to jointly own the property in equal shares had changed, meaning that the partner who had made less of a contribution was awarded only a 10% share of the property.

If you are separating from your partner and are unsure of your situation, contact our family law team to find out steps we can take to protect your interests in a property. The law relating to unmarried partners is complex and it essential you seek legal advice at the earliest opportunity.

Am I entitled to spousal support after our breakup?

Unmarried cohabiting couples have no legal responsibility to provide financially for one another after separation. If you have children together, you won’t be able to claim spousal support but child support may be payable. In England and Wales, the financial responsibility parents have to their children is enforceable through the Child Maintenance Service.

Does my partner have parental rights if we are not married?

Whilst unmarried mothers automatically have parental responsibility for their children, fathers do not, unless either they are married to the mother at the time the child is born and/or they are named as father on the child’s birth certificate. In practice, therefore, it is increasingly unusual for even unmarried fathers to not have parental responsibility. If for some reason a father does not have it, he can gain it by entering into a Parental Responsibility Agreement with the mother or by securing a court order. Both parents having parental responsibility provides extra security for children especially in the case of death e.g. if the mother passed away, and the father did not have parental responsibility, he would not then not automatically have responsibility for his children.

We are not married – why do I need to make a Will?

When someone dies without making a Will, certain rules apply (the rules of “Intestacy”) and they will decide who will benefit from your estate. Unmarried partners do not benefit under the intestacy rules and therefore have no automatic right of inheritance. Click here to view our quick answer intestacy flow chart:

The surviving cohabiting partner may, however, be able to claim from their partner’s estate through the Inheritance (Provision for Family and Dependants) Act 1975. We have experienced solicitors who specialise in contentious trust and probate work on a daily basis and who can provide you with help and support should you find yourself in this difficult situation.

To prevent any stress or uncertainty, it is essential a Will is made and kept regularly updated as your circumstances change.  To help you plan and prepare ahead, please click here to view our checklist for making a Will.

Next step…

Cohabitation Agreements:  A cohabitation agreement is a legal document designed to protect the legal rights of unmarried couples. It makes things straightforward if you ever separate. If you are buying a property with someone, particularly if you are taking out a joint mortgage and you are not married, it is sensible to create one. It can include details such as who is bringing what assets into the relationship, how property is owned and who is responsible for what.

Declaration of Trust:  A Declaration of Trust clearly sets out your ownership rights.

Separation Agreement:  This is a written contract between individuals who have already separated or are considering a forthcoming separation. It can be used by both married and unmarried couples and sets out your financial arrangements.

Call us…

Our family law specialist, Carline Gayle-Buckle has a wealth of experience and can provide support and advice in relation to your rights surrounding your separation and the assets you have built with your partner. 

We are extremely experienced in dealing with couples with children and take particular care when dealing with the legal aspects of relationship breakdown to take into account the potential long-term emotional consequences for the family. Carline is also a member of Resolution which is a national organisation which promotes a non-confrontational approach to family problems.

To talk through your specific situation, call us on 01926 354704.