20/11/2023

The number of unmarried couples who live together in England and Wales now stands at over 3.6 million.

According to 2022 data from the Office for National Statistics, cohabiting couples is the fastest growing family type accounting for 18% of all families.

It might be surprising, therefore, to learn that unmarried couples who live together have few rights when it comes to finances and property should their relationship breakdown or their partner pass away.

What about common law marriage?

The concept of common law marriage is a myth, which has no legal status. No matter how long you have lived with your partner or how many children you have together, you still do not have the same legal protection as people who are married or in a civil partnership.

Rights of unmarried couples who split up

Unmarried couples can separate informally. However, the court can make orders relating to the care of children.

  • Property – If your partner is the sole owner, you have no absolute right to remain in the home if they ask you to leave, although in some circumstances the court may grant you a right to occupy or return to live in the property. You may claim to have a ‘beneficial interest’ in the property on the basis that you have made financial contributions to the home. In these circumstances you may require a court to formally recognise the contribution you have made.

If you are joint owners, you each have equal rights to stay in the home. A court can decide who should remain in the property if you are unable to reach agreement.

By contrast, if you are married, ‘home rights’ means that you both have the right to remain in the matrimonial home even if the property or mortgage are not in your name and generally can only be excluded by a court order or if the police become involved and bail an owner to stay away from the property.

  • Finances – The finances of cohabiting couples who have separate bank accounts will remain separate with neither partner having access to the other’s money. If you have a joint account, you will both have access to the money and, if you can’t agree, a court can decide who receives what.
  • Children – Whether you are married or not both parents are responsible for financially supporting and caring for their children. A court can help with arrangements via a child arrangements order if agreement cannot be reached. Similarly, the Child Maintenance Service can help set maintenance contributions if these can’t be agreed informally.

What happens if a cohabiting partner dies?

Without a will you will be at the mercy of the rules of intestacy, which can be complicated and crucially make no provision for unmarried partners regardless of how long you have lived together.

Under these rules your assets will pass directly to surviving children, grandchildren, great-grandchildren or other close family members such as your parents or siblings.

The exception is where a couple owns property as joint tenants. If one of the owners passes away with or without a will, the property will automatically pass to the other owner. This is known as the Rights of Survivorship, which will continue until a joint tenancy is severed. Homeowners should take advice on this issue given its significant implications.

How should unmarried couples protect themselves?

There are a number of things that we would strongly recommend unmarried couples do to protect themselves. These are relatively inexpensive, straightforward steps to take that should be regarded as essential, just like purchasing buildings and contents insurance.

  1. Make a will – Instruct a qualified solicitor to make your will. This will ensure that your assets are distributed according to your wishes and your partner and family are protected.
  2. Create a cohabitation agreement – A cohabitation agreement sets out financial and childcare arrangements, along with details about how property, savings and other assets should be split if the relationship breaks down. To ensure it is legally binding, the agreement should be properly drawn up by a family solicitor.
  3. Consider a declaration of trust – If one party has invested more in the shared home than the other, a declaration of trust can be used to clarify how things will be shared in the event of a relationship breakdown.

Is cohabitation reform on the cards?

Reform of the law to better protect cohabiting couples is long overdue. However, the government has said that existing work on the law of marriage and divorce must conclude first.

MPs have responded by urging the government to reconsider on the basis that without basic legal protections millions of unmarried, cohabiting people could face financial hardship if their relationship breaks down.

Until meaningful reform is achieved, it is vital that couples understand their rights and the steps that they can take to protect themselves.

How to get advice on the rights of unmarried couples

For advice about the rights of unmarried couples or any family law matter, please don’t hesitate to contact our Stoke-on-Trent solicitors on 01782 205000, our Altrincham solicitors on 0161 929 8494 or email enquiry@beswicks.com.