The legal rights of unmarried couples living together

Unmarried couples living together - your legal rights explained if you’re cohabiting including financial, property and parental rights.

Many couples live together before they get married, or choose not to get married at all. However, unmarried couples living together have different legal rights compared to married couples. Unmarried couples don’t have the same legal protection as married couples; and they also have less responsibility to each other in the event of a breakup.

Sally Powell, Partner and family law solicitor at Tees is an expert in the legal rights of unmarried couples. Here, Sally explains some of the key legal points unmarried couples should be aware of before they move in together.

What is cohabiting? 

Cohabiting is when a couple lives together before marriage (or civil partnership).

If you’re living with your partner, and you’re not married or in a civil partnership, you’re a cohabiting couple.

How long does it take to be married according to common law (sometimes called "common law married")?

An unmarried couple can never be ‘common law married’ because common law marriage or common law spouses no longer exists in UK law and hasn’t done since 1753! It is a popular myth that couples are ‘common law married’ if they have lived together for a certain number of years, but this is not the case.

The only way to get the legal rights of a married couple is to get married. This remains the case even if you live together a long time, have kids or buy a house together.

Can unmarried partners get spousal support after a breakup?

Legally, cohabiting couples have no financial responsibility to one another if they separate. If your relationship ends you have no legal responsibility to provide your former partner with financial support.

Many cohabiting couples choose to start a family together. Unmarried parents can’t claim spousal support if the relationship breaks down, but child support may be payable. In England and Wales (but not in Scotland) parents have a financial responsibility to their children through the government’s scheme, the Child Maintenance Service.

What are the parental rights of unmarried fathers and unmarried mothers?

Unmarried mothers automatically have parental responsibility for their children. Fathers do not automatically have parental responsibility for their children unless they are married to the mother. Unmarried fathers can get parental responsibility for their children by jointly registering the birth. Joint registration means the father’s name goes on the child’s birth certificate, along with the mother’s.

Parental responsibility is important because it means parents can have rights and responsibilities in relation to their children. Unmarried parents should plan carefully about what might happen to their children if they split up, or if one parent dies unexpectedly.  Jointly registering the birth provides extra security for the children in case of an unexpected death, as both parents have parental responsibility. For example, a father without parental responsibility would not automatically have responsibility for his children if the mother passed away, which can make an already incredibly difficult situation more challenging.

Adding the father’s name on a birth certificate 

The father’s name can be included on a birth certificate by:

  • jointly registering the birth - both parents sign the birth register together and the father’s name is on the birth certificate from the start
  • completing a statutory declaration of parentage  - one parent completes a statutory declaration of parentage, and the other takes the signed form to register the birth
  • going to court – one parent can register the birth, using a court order, to give the father parental responsibility.

Parents don’t need to be married to add the father’s name on the birth certificate, and the child can have either parent’s surname.

Legal rights of unmarried couples if one dies

Unmarried cohabiting couples have no automatic right of inheritance if their partner dies without a Will.  When someone dies without a Will, there are legal rules (called ‘intestacy rules’) which decide who benefits from their estate. Unmarried partners do not benefit under intestacy rules.

When one cohabiting partner dies without a Will, their surviving partner may be able to claim from their estate through the Inheritance (Provision for Family and Dependants) Act 1975 (‘the 1975 Act’). This can also be referred to as an ‘Inheritance Act claim’. Surviving unmarried partners can apply through the 1975 Act for provision from their deceased partner’s estate. They may be able to make claim under the 1975 Act if:

  • their partner died intestate (without a Will)
  • their partner left a Will, but didn’t adequately provide for their partner within it.

Surviving partners have 6 months to make a claim once the Grant of Probate/letters of Administration have been issued. In some limited circumstances it may be possible to start a claim after 6 months has passed.

Unmarried partners who apply through the 1975 Act are entitled to reasonable financial provision as is necessary for their maintenance, so far as the estate can provide. Factors the court may consider in 1975 Act claims include:

  • the financial resources and needs of the applicant making a claim through the 1975 Act, and their future financial resources and needs
  • the financial resources and financial needs of any other applicants through the 1975 Act, and their future financial resources and needs
  • the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future
  • any obligations and responsibilities which the deceased had towards any applicants making a claim through the 1975 Act or towards any beneficiary of the estate of the deceased
  • the value (after tax) and nature of the deceased’s estate
  • any physical or mental disability of any applicant
  • any other matter (including the behaviour of the applicant, or any other person in the case) which the court considers relevant in the circumstances.

Tees have several members of The Association of Contentious Trust and Probate Specialists (ACTAPS) who specialises in contentious trust and probate work should you find yourself in this situation. However the moral is to make a Will to provide for your unmarried partner and to keep it regularly updated as your financial circumstances change.

Can an unmarried couple open a joint bank account together?

Yes. You don’t need to be married to open a joint account.

Joint accounts can be a handy way of simplifying your finances and dealing with shared household expenses (e.g. rent, food, and bills). Some couples choose to open a joint account, others prefer to keep their finances separate – it’s a personal choice. 

When an unmarried couple opens a joint bank account together they become financially linked, to a degree. Lots of couples aren’t aware of this - the significance of opening a joint account isn’t always obvious. For example, if you break up, there’s nothing to stop either partner from taking all the money out of the account – and very little you can do to get the money back.  Opening a joint account can also affect your credit score. If your partner has a poor credit score, or defaults on payments associated with the account, it could affect your personal credit score.

Property rights of cohabiting couples 

If a cohabiting couple splits up, they do not have the same legal rights to property as a married couple. In general, unmarried couples can’t claim ownership of each other’s property in the event of a breakup. This applies to big investments (such as a house) and smaller items (such as furniture). Gifts made during the relationship remain the property of the recipient.

If one partner owns a house, the other partner may have a claim to have an interest in it on the basis that a “trust” has arisen, even if the relationship later breaks down. A trust may arise where a partner makes certain financial contributions (for example by paying to build an extension). 

In this situation, a trust of this nature is when two (or more) cohabitees have an implied agreement relating to a property, normally based on their behaviour and financial contributions. The trust means that the homeowner isn’t placed in a better position at their partner’s expense. Both partners may be beneficiaries in a trust - even when nothing has been written down, and the other partner is not on the title deeds of the property.

These trusts can be formed between cohabiting partners, and are a complex area of the law. In the event of a dispute (for example, if the relationship breaks down) the Courts often become involved. The Court may need to decide the extent of the contributing partner’s beneficial interest. By nature, these trusts are uncertain and seeking legal advice at an early stage is advisable.  This would include instructing a legal advisor to prepare a declaration of trust so that the terms of any trust are agreed in advance, which removes the uncertainty going forwards.

Cohabitation agreements for unmarried couples living together

A cohabitation agreement is a legal document designed to protect the legal rights of unmarried couples. It makes things straightforward if you ever separate. We can create a cohabitation agreement for you that clearly sets out what would happen if you ever separated. It gives you legal protection and helps make sure there are no misunderstandings. For example, if you own property together a declaration of trust will clearly set out your ownership rights.

If you have been cohabiting and the relationship has come to an end, we can advise on the best way forward. For example, we can help you divide any assets you have together. It's not always straightforward when a relationship breaks down, but we'll help you keep the practical aspects under control. Property laws in particular are complex and often turn on specific facts. If you have a property dispute but no declaration of trust, our expert and in-depth knowledge will help you to make the decisions that will resolve any sale or ownership issues. We also have a lot of experience in helping couples who have children. 

Call us for a FREE phone conversation for 30 minutes about your options. Alternatively, if you want us to take a closer look at your situation, for a fixed fee of £150 (+VAT), you can book a face-to-face consultation for up to 90 minutes. 
 

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