With my Back to Basics series, I aim to demystify areas of family law that are often confusing and misunderstood. Having already explored divorce and finance, and child law, I now turn my attention to an area that raises just as many questions: unmarried couples. In this blog, I am going to answer the questions I am asked most frequently, covering everything from what you should think about before moving in together, to what happens on separation, including property, finances, and day‑to‑day practical concerns.
Before cohabitation
- Do I have the same rights as a married couple if we live together?
It is firstly important for us to debunk the age-old myth surrounding what is commonly dubbed “common law marriage.” There is no such thing as a “common law marriage” in England and Wales. Cohabitating partners do not automatically obtain the same rights as married partners. The law will not treat the two of you as a married couple regardless of how long you have lived together.
A couple can live together for 30 years, build a life together and raise a family, and yet still be treated as strangers in the eyes of the law upon separation.
- What can I do to protect myself and my assets before moving in with my partner if we are unmarried?
Couples moving in together are advised to enter into a Cohabitation Agreement. This can be done prior to moving in or after, but prior to moving in together is best advised. A Cohabitation Agreement sets out the agreement reached between the parties as to how their finances, property and responsibility will be arranged whilst living together and in the event the parties separate. This agreement can be relied upon throughout the relationship or upon separation to prove what was agreed at the time of drafting.
A Cohabitation Agreement does not need to be sealed by the Court – it is signed by both parties and their legal representatives. A Cohabitation Agreement is likely to stand up in Court provided that:
(a) The parties took independent legal advice;
(b) The parties entered into the agreement freely and without pressure or undue influence;
(c) The parties engaged in full and frank financial disclosure;
(d) The terms of the agreement are fair; and
(e) The agreement has been kept up to date with life changes, ie, change to employment, assets obtained and children.
A further important consideration when purchasing a property as an unmarried couple is whether a Declaration of Trust should be prepared, particularly where one party is contributing more towards the deposit than the other. Without a Declaration of Trust in place, and if the property is owned as joint tenants, each party will be entitled to an equal 50/50 share on separation, regardless of any unequal initial contributions. Where one party is investing a larger sum, it is usually advisable to hold the property as tenants in common in unequal shares, with a formal Declaration of Trust setting out the agreed proportions of ownership.
Upon separation
- What steps should we take when separating as an unmarried couple?Open discussions are always the key to reaching an agreement as to division of assets. In the event that a Cohabitation Agreement was put in place when the parties began cohabiting, the agreement reached should be largely reflective of its contents.
Upon separation, unmarried couples are advised to formally document any financial arrangements and the division of assets under a Separation Agreement. Although such agreement is not automatically legally binding, it provides strong evidence of what was agreed and can help avoid disputes down the line.
- Does a Cohabitation or Separation Agreement need to be approved by the Court?
A Separation Agreement does not go to the Court to be sealed or approved by the Judge. The agreement is signed by both parties and their legal representatives.
Property and finances upon separation
- What happens to the house if we separate?
As unmarried couples, the division of a jointly owned house is dependent on how the title is held by the parties.You may find yourself in any of the below scenarios:
(a) The house is owned jointly
The property would either be held as joint tenants in equal shares or tenants in common in either equal or unequal shares. The division of equity or lump sum paid to one party should be reflective of how the property is held.
(b) The house is owned solely by one party
The party who is not named on the title deeds is not automatically entitled to a share of the property upon separation. To claim a share of the property, the unnamed party would have to prove a beneficial interest under the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”).
(c) There is a Declaration of Trust in place relating to the property
The division of equity or lump sum paid to one party should be reflective of the contributions of either party as per this document.
- Is my partner entitled to a share of my solely owned property if we are unmarried?
No, unmarried partners not named on the title of a property are not automatically entitled to a share of said property. As above, the non-owning party would need to prove a beneficial interest under TOLATA.
- What happens to our joint assets and savings if we separate?
Where a Cohabitation Agreement is in place, the division of assets and savings should be in accordance with the terms of that agreement. In the absence of such an agreement, division should generally be based on the parties’ respective contributions, for example, who purchased particular items (such as furniture) and the proportion each party contributed to any joint savings, with the assets divided accordingly.
- Can I get financial support from my ex if we weren’t married?
A party cannot receive spousal maintenance if they are unmarried. For financial support when there are children involved, please see the 'Children on separation' section.
- If I contribute to the mortgage but the house isn’t in my name, do I have any rights?
If the parties are unmarried and living together in a property which is in the sole name of one party, the party not named on the mortgage does not have any automatic right to equity in the property regardless of whether or not they have contributed to the mortgage.
The partner who is not named on the deed has no automatic right to remain living in the property upon separation. The party not on the deed can make an application to the Court under the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”) to claim a beneficial interest in the property based on contributions made by the other party to the mortgage or home improvements.
Children on separation
- Does not being married make any difference to child arrangements when we separate?
No. Whether or not parents are married has no impact on arrangements for children. The legal rights and responsibilities relating to children are the same for married and unmarried parents alike. For further information, please see our Back to Basics: Child Law Part One and Part Two.
- What are my rights financially if we have children but aren’t married?
If the couple have children together, in the event of one party being the primary carer, they can obtain child maintenance from the other parent. In the event of a shared care arrangement, it may be the case that one party is entitled to child maintenance still and so a calculation should still be done.
Under Schedule 1 of the Children Act 1989, a parent may apply for financial provision for a child, which can include:
(a) Help with housing while the child is a dependent
(b) Lump sums or contributions to expenses
If you have any further questions or need support, please don't hesitate to contact me or a member of our Family Law team.