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“I’m not married to my partner, am I legally protected if we break up?”

Posted on August 3rd 2018

“Common law marriage” does not exist and many cohabiting couples wrongly believe that they have the same rights as married couples when their relationship ends.

If you are in a cohabiting relationship, or leaving one, this article is a vital read. Below we detail the lack of legal rights for cohabiting couples. We also provide advice on how you can best protect yourself if you are in an unmarried relationship.

The myth of “common-law marriage:”

In 2017, Resolution carried out a survey which found that two-thirds of cohabiting couples (couples who are unmarried but live together) believe that “common-law marriage” exists.

“Common-law marriage” traditionally described couples who had not had a civil or religious marriage, but who acted as a married couple. It is now used widely by the media to refer to couples who live together. Unfortunately, this has led to many people assuming that these couples have the same rights as married couples when they separate or if one partner dies.

This could not be further from reality. There is no such thing as common-law marriage. Whilst the number of cohabiting couples has doubled since 1996, the laws surrounding these couples haven’t changed. This means you could be in an unfortunate financial situation if you separate, or if one of you dies.

What rights do unmarried couples have?

Currently, if you are not married, you have no automatic legal rights to your partner’s property or finances if your relationship ends or if one of you dies.

Below we discuss how your rights differ as an unmarried couple, in comparison to married couples. Sadly, these points apply to unmarried/cohabitating couples regardless of how long your relationship lasts.

Claiming money:

As a cohabitating or unmarried couple, you cannot automatically claim any of your partner’s money if you separate. This applies even if you have children together. For example, if you stayed at home to look after children whilst your partner worked, you are not automatically entitled to claim maintenance for yourself, property, or pension-sharing if you separate. However, if you have children, the main carer can claim Child Maintenance from the other parent.

Importantly, if you are unmarried, but jointly own assets (i.e., your house) then you will still be able to claim your share of that asset.

If you are unmarried, you will need to get advice from a Solicitor. A Solicitor can investigate whether you can make a claim for the family home if it belongs solely to your ex. It is much harder to make a claim if you are unmarried. Married couples are always able to make a claim to the family home and other properties, regardless of ownership.

Dying without a Will:

If a married person dies without a valid Will, their spouse automatically inherits their Estate (subject to some exceptions). This is not the case for unmarried couples.

If one cohabiting partner dies without a valid Will, the surviving partner does not automatically receive anything from their Estate. This includes property, money, and other assets. This is unless, in some cases, you owned any of these jointly with the deceased partner. For example, a joint bank account. You can learn more about making a Will by clicking here.

Children:

Unmarried couples have the same legal rights as married couples when it comes to arrangements for your children following separation. For example, disputes about where your children should live and issues around paying Child Maintenance. You can click here to learn more about this.

Living arrangements:

If your ex-partner owns the house that you are living in, or is the only tenant named on the rental agreement, you can be asked to leave if your relationship breaks down. This could potentially leave you homeless, with no legal comeback.

In comparison, married couples have legal options to prevent them from being evicted, whilst they are still married.

What can I do as an unmarried partner?
  1. Create a cohabitation agreement: This is a document which you create at the beginning of or during, a relationship, with the help of a Solicitor. It describes what you both intend to happen should you ever separate. The agreement considers issues such as finances, child arrangements and even pets. This document can be vital in providing clarity and evidence of your intentions after you split.
  2. Create a declaration of trust: When purchasing property as an unmarried couple, you should think about creating a Declaration of Trust. This will describe the share you each get if the property sells. If you do not draw up a Declaration of Trust and separate, it will be assumed that you own the property in equal shares. This applies regardless of how much money you each put towards the deposit, mortgage, etc. If you are contributing more money than your partner you should protect your greater interest in the property with a Declaration of Trust.
  3. If you’re renting a home, put both names on the tenancy: If only one person is named, the other person has no right to continue living there if you split up.
  4. Make a Will: If you die without one, your partner will not automatically inherit any of your assets. Again, with the exception of some joint assets.
  5. Talk to a Family Solicitor: We offer free legal advice to help you understand your situation and next steps. Call us today on 01244 312306.
How can we help?

If your relationship breaks down, we are here to advise you. You can visit our family law-related pages by clicking here. If any of these matters affect you, please contact the family department on 01244 312306, or by emailing us at family@oliverandco.co.uk

Call and speak to a lawyer on 01244 312306