Families and divorce
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 to cohabit rather than marry. However, unmarried couples living together have different legal rights to married couples. Unmarried couples don’t have the same legal protection as married couples; and they also have no legal responsibility for each other in the event of a breakup. This means the rules that apply in a divorce, don't apply if you're not married.
Joshua Coombe, Partner and family law solicitor at Tees is an expert in the legal rights of unmarried couples. Here, Joshua explains some of the key legal points unmarried couples should be aware of before they move in together.
- What is cohabiting?
- How long does it take to be married according to common law (sometimes called "common law married")?
- Can unmarried partners get spousal support after a breakup?
- What are the parental rights of unmarried fathers and unmarried mothers?
- Adding the father’s name on a birth certificate
- Legal rights of unmarried couples if one dies
- Can an unmarried couple open a joint bank account together?
- Property rights of cohabiting couples
- Cohabitation agreements for unmarried couples living together
- What is being done about current legislation for cohabiting couples?
- What steps can be taken to protect yourself as a cohabiting partner?
What is cohabiting?
Cohabiting is when a couple lives together before marriage (or civil partnership) or instead of marrying or entering into a civil partnership. If you’re living with your partner, and you’re not married or in a civil partnership, you’re a cohabiting couple. You might want to consider getting a cohabitation agreement which would make things more straightforward in the event of splitting up.
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.
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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, while 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 adviser 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 separating couples who have children.
What is being done about current legislation for cohabiting couples?
The current legal position has been widely criticised as unmarried cohabiting couples are effectively being penalised in law for their choice not to marry. These outdated laws especially affect women and children, particularly where a cohabiting woman has given up work to raise the children of the family and is subsequently left with little to no financial security.
Women of ethnic minority backgrounds belonging to religious communities in which religious-only marriages take place are also disproportionately affected as these ceremonies often do not meet the legal formalities. These women do not, therefore, benefit from the legal protection that other married couples enjoy despite the fact that in their community they are considered married.
In light of the failure of the current legislation to protect cohabiting couples, in August 2022 the House of Commons Women and Equalities Committee published a report titled “The Rights of Cohabiting Partners”, calling for widespread reform to the laws relating to cohabitation to adapt to modern societal changes to the family structure.
The report makes a number of recommendations to the Government which seek to tatacklehe key issues affecting cohabiting couples. For example, the report recommends that the Government should urgently launch a public information campaign to bust the ‘common law marriage’ myth. The report also urges the Government to level the playing field and give cohabitants similar inheritance rights to married couples and civil partners on the death of their partners.
The report also advocates for an opt-out cohabitation scheme, which has previously been proposed to the Government. The scheme would seek to give basic legal rights to cohabitants on the breakdown of a relationship where they had a child together or had lived together for a specified number of years. Should a cohabiting couple wish to, they could opt out of the scheme and the current laws would continue to apply to them instead.
Unfortunately, the Government has rejected the majority of the proposals put forward by the Women and Equalities Committee and has refused to take any meaningful action to provide cohabiting couples with basic legal protection.
The Chair of the Women and Equalities Committee, Caroline Nokes MP, criticised the Government’s response to the report saying that their rejection of reform, “risks leaving a growing number of cohabitants and children vulnerable.”
Resolution, an organisation committed to the constructive resolution of family disputes, has also criticised the Government’s rejection of the report’s recommendations with the Chair of Resolution’s Cohabitation Committee describing the response as ‘bitterly disappointing’ and saying that the current legislation is ‘not fit for purpose’ and if left unchanged, will continue to subject families to ‘misery and dire financial hardship’.
What steps can be taken to protect yourself as a cohabiting partner?
The campaign for reform to cohabitation law will certainly continue until the Government recognise the need to address the unfair imbalance between both married and civil partner couples, and cohabiting couples. However, until the necessary changes to the law are made, we would encourage cohabiting couples to take steps which are currently available to protect themselves as best they can. Such measures include:
- Drawing up a cohabitation agreement between you as a couple. This can set out your common intention for the family finances, property and care of children and provide some protection should the relationship break down. Our Family department would be happy to assist you in drafting a cohabitation agreement.
- Making a new Will. We would also encourage cohabiting couples to write Wills or amend existing Wills to ensure that your estate passes to your cohabiting partner should you wish it to. Our Private Client department would be happy to assist in drafting Wills.
- Taking tax advice. Given that cohabiting couples do not enjoy the tax breaks that married couples and civil partners have the right to, it may be prudent to get some advice to ensure that you are managing your affairs in the most tax-efficient way. Our Private Client department and Tax & Trusts department can advise you on managing your affairs and preserving wealth.
- Check your pension position. Your current pension may not currently pay out to your unmarried partner on your death and you may wish to clarify where you wish your pension benefits to go in the event of your death.
- Taking out life insurance. Should a cohabitant pass away, their partner would not be entitled to receive a Bereavement Support Payment that married couples may be entitled to. Life insurance can act as a safety net should you require support in the event of your cohabiting partner’s death.
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Chat to the Author, Joshua Coombe
Partner - Families and Divorce, Chelmsford officeMeet Joshua
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Thank you very much for all your help Joshua. Your wise counsel was greatly appreciated and I think we have succeeded in making things as amicable as possible
Legal 500 UK 2021
'Joshua Coombe is a fearless advocate for his clients, in both high worth money cases and children matters.'
I was impressed by your prompt responses, your clarity and the way you all kept me on track. I couldn’t have asked for more from the team and I honestly believe I wouldn’t be in such a good place now if it hadn’t have been for you all as a team. A very big thank you.
I recently used Joshua Coombe to guide me through a difficult divorce. He was extremely knowledgeable, approachable and responsive to my needs. His calm, professional and clear advice provided much needed reassurance throughout the process. I wouldn’t hesitate to recommend him to others.
I recently used Joshua Coombe to guide me through a divorce. He was extremely knowledgeable and provided me with reassurance and support at a difficult time. Joshua was very approachable and gave excellent advice and made the whole process as painless as possible.
Tees is a great company! I'd highly recommend Joshua Coombe and his team for any family matters you might have.
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