Unmarried Couples Rights: A Comprehensive Guide

Unmarried couples simply do not have the same rights around finances, property and children as those who are married. There is a common assumption that ‘cohabiting couples’, those who are not married but live together in a committed relationship, have the same or similar rights as married couples or are “common law” husband and wife. This is a myth.

Without a Will and/or a cohabitation agreement (or other agreements) to protect your interests, it may not be clear what your rights are with your house, possessions, savings or responsibilities relating to the children.

This article will help you understand the fundamentals of your rights if you are unmarried and separate from your partner.

What is cohabiting?

Cohabiting is when a couple lives together but are unmarried. They may own joint possessions and property and have savings in joint bank accounts. Or, they may have property and possessions solely owned by one person that they have brought into the relationship.

Cohabiting couples may even have children together, or co-parent with children from previous relationships.

Many people believe that after a certain number of years, an unmarried couple living together will become ‘common law partners’. An unmarried couple can never be ‘common law married’, because common law marriage or common law spouses do not legally exist.

The only way to get the legal rights of a married couple is to get married or enter a civil partnership.

What legal rights do unmarried couples have?

Under current law, if you are unmarried, you do not have the same rights as a married couple. We understand that family laws surrounding unmarried couples are outdated, and do not reflect the needs of modern couples.

As an unmarried couple, you have no automatic legal rights to:

– Claim against property in the sole name of a partner.

– Claim against possessions or assets owned solely by a partner (although there may be exceptions).

– Claim against pensions in the sole name of a partner

– Spousal maintenance.

– Custody rights over children as a father if not named on the birth certificate or where a partner is not the legal parent.

– Inherit from the other person estate after death.

However, legal rights for unmarried couples could change if there is a Will or cohabitation agreement in place.

Unmarried couples are responsible for and entitled to:

– Child maintenance payments.

– Child custody with children where both partners are the legal parents. However, If a couple are unmarried, the law gives sole parental responsibility to the mother, unless a specified circumstance exists such as the father being named on the birth certificate.

– Mortgage payments on jointly owned property (the amount owed would be dependant on the ownership structure on the property).

– Payments on any joint debts.

– Payments on any utility bills in joint names.

– Payments for rental agreements in joint names.

– Joint custody on any pets.

However, if a cohabitation agreement is in place, this can affect the responsibilities if an unmarried couple separates.

If one party contributes the majority share of any payment towards a joint asset, for example contributing most of a deposit to a jointly owned property, they would not automatically get this back in the event of a separation. A cohabitation agreement and/or declaration of trust would be crucial in that situation for anyone seeking to protect their extra contributions.

What are the rights of unmarried couples living together?

Most long-term couples live together, and when they separate, it can be difficult to understand the legal rights around housing situations. The rights and responsibilities of both partners depends on the type of housing arrangement and ownership structure of any property purchased.

Renting a home together

When both your names are on the tenancy agreement, in most circumstances you are equally responsible for the rent and any other tenancy conditions. You are also responsible for any bills, such as utility bills, internet and council tax payments registered in joint names.

If you separate and one of you wants to move out, you will need to talk to your landlord or lettings agency to change the tenancy agreement. If you both vacate a rented property, you will need to comply with the terms of the tenancy agreement made with a landlord for the rest of the duration if you cannot reach an agreement about bringing it to an end.

Owning a home together

This will depend on the owning structure of your property.

Joint Tenancy – Joint tenancy is where multiple people have joint ownership, equal rights and equal shares in the property. On death the survivor would also automatically inherit the other’s share of the property no matter what is provided for in their will.

Tenancy in Common – Tenancy in common is where the co-owners can have equal or unequal shares of the property. Each party can leave their share to someone else on death by providing for this in their will.

You can find our full advice guide on tenancies in our Joint Tenancy or Tenants in Common: What’s the Difference? Advice article.

If one person owns the property

One partner will not usually automatically have any rights to a property if they don’t legally own the property or a share in it. They would need to be added to the ownership of the property at the Land Registry by re-registering the ownership.

However, you may be able to claim against a house if owned in your partner’s sole name if you can prove you have:

– Contributed to the deposit for the house or the mortgage payments, or

– Made a financial commitment, like paying for major work on the house, with the understanding that you would own a share of the house despite the ownership being registered in the other person’s sole name. This could be documented in a cohabitation agreement.

The situation about the right to live at a property registered in the sole name of your partner can be quite complex and much depends upon the ability to demonstrate the intention to share ownership despite the registration to the contrary. And, unless it’s left to you in their Will, you won’t automatically inherit the property if your partner dies.

In the event of a separation there can often be disagreement about what each party intended about the property and the contributions made. This can cause a significant amount of stress to try to resolve. A cohabitation agreement prepared by a family solicitor can avoid this by explaining clearly the terms on which the property is going to be shared together.

If you agree that you should both have a share in the property, you can transfer the property into a joint tenancy or a tenancy in common. A property and conveyancing solicitor can help you do this.

What happens when an unmarried couple separates?

If an unmarried / cohabiting couple splits up, they do not have the same legal rights to property, assets and money as a married couple does. So therefore, it is not as clear to what the legal rights are to specific assets and possessions.

The House

As mentioned before, this depends on the ownership structure.

If one partner already owned the property prior to the relationship the other partner will not accrue an interest in the property by simply living in the property for a length of time. They would need to establish a common intention to share the equity and contributions whether financial or towards the family. Simply decorating or paying for shopping would not normally result in the partner accruing an interest in the property.

Any disputes over the value of contributions by either partner or how any equity should be divided will be dealt with by a civil court. It’s advised to seek advice from a solicitor if you are seeking a settlement from a civil court.

We will always explore amicable solutions to disputes, and we can often deal with them before they escalate to court proceedings.

Joint tenancy

If you have a joint ownership, which is the most common ownership for couples, you will each own equal shares and equal financial responsibilities on the property. Conflicts can arise if there is a difference of opinion on how the house should be shared after separation. Particularly if one partner wishes to remain in the property and the other wishes to move out.

Your options will be to continue with the financial responsibilities of the property jointly. Alternatively, one partner can ‘buy out’ the other partner, and transfer sole ownership to one partner. There are several financial options available to achieve this, such as transfer of equity, which a property and conveyancing solicitor can help with.

If both partners remain joint tenants when you separate, no matter how long you are separated or estranged for, you will both always have joint ownership of the property. Therefore, you cannot change the ownership on a property, sell the property or remortgage the property, without consent from both owners. The equity will always remain 50:50 split between both partners.

This means you cannot sell the property or remortgage a property without both persons consent to do so. This can cause issues because when a fixed rate mortgage term comes to an end as the mortgage payments can rise significantly.

However, it could be argued that the percentages should be changed if the partner remaining in the property has paid all the mortgage/house improvements etc during that period of separation.

In this scenario, a family law solicitor can help collate evidence and make proposals for either a settlement agreement or for a change in the equity share. A property and conveyancing solicitor can help re-register the property ownership structure or sell the property.

Tenants in common

If you have a tenant in common ownership, both partners can own a different share of the property. Unlike a joint tenancy, the shares owned by each partner will form part of their own personal ‘estate’. Meaning, for example, the shares of the property will be inherited by the owners next of kin, or by instructions left in a Will, instead of the other partner.

Like joint tenants, if one partner wants full rights and responsibilities of the property after a separation, they will need to ‘buy out’ the other partner. Again, this will be via a transfer of equity, which can be done via a solicitor.

Transfer of equity

A transfer of equity is where you change the legal ownership of a property. This is usually when you wish to change shares of a co-owned property or buy out an equal co-owner. This can be done via a property and conveyancing solicitor, and can usually take around 4-6 weeks depending on the terms of the mortgage and with permission from the mortgage lender.

Possessions, debt, bank accounts & savings

You will need to decide how joint debts or financial obligations that you may have acquired during the relationship will be dealt with.

Any possessions that were:

– Owned by one partner prior to the relationship.

– Purchased by one partner.

– Received as a gift to one partner.

Are usually deemed to be owned by that partner. Any joint/larger items would normally need to be divided by agreement or as a last resort can be divided by the court.

If you have separate bank accounts, neither of you have the right to access money held in the other partner’s account.

If you have a joint bank account, even if you do not use this account, you are responsible for any debt on that account. Both partners are also entitled to withdraw any money held. .

You will normally need both partners agreement to close any joint bank accounts.

Pensions

A pension is classed as an asset, just like a house or a possession. Therefore, pensions are treated like any other asset in an unmarried relationship. One partner has no automatic entitlement to the other person’s pension.

However, if the other partner is named formally as a ‘nominated beneficiary’, they may have entitlement towards the pension on death.

Spousal support

Cohabiting couples have no financial responsibility to one another if they separate. Therefore, unmarried partners can’t claim spousal support if they separate.

Legal rights if you are unmarried with children

When children are involved in a separation, married or unmarried, the law offers some level of protection for parents. However, unmarried parents should plan carefully about what might happen to their children if they separate.

Parental responsibilities

Parental responsibility means that the parent has a say in important decisions about the child or children. Unmarried mothers automatically have parental responsibility for their children. The father only has parental responsibility if they are on the child’s birth certificate, married to the child’s mother or acquire it in some other way for example a parental responsibility agreement.

The law is designed to protect the best interests of the child. Parental responsibility does not depend on the payment of child maintenance or the amount of contact time a parent has with their child.

If a parent is being prevented from seeing their child, there are several steps they can take, including ultimately taking the matter to court. Before doing this, a family law solicitor can write to your ex-partner on your behalf, proposing a suitable arrangement for you to have contact with your child and help try to resolve matters by agreement. Further steps could include mediation or some other form of non-court dispute resolution.

Child maintenance

Parents have a financial responsibility to their children. Being married or unmarried has no bearing on financial responsibility for any children. Even if you do not have parental responsibility for a child, you are financially responsible for any children you have.

If you and the other parent are arranging child maintenance between you, you’re free to decide the amount one parent pays the other. This is referred to as a family-based arrangement. You can pay for child maintenance yourselves or through the government’s scheme, the Child Maintenance Service (CMS).

However, this is not the case if one parent is not the legal parent of the child. If one parent is not the legal parent, for example a co parent for a child from a previous relationship, they do not have to be financially responsible for that child. 

Children from another relationship

If your partner has a child or children from another relationship, you do not automatically have parental responsibility for them if you separate.

A family law solicitor can however help you seek access to a child if the arrangements for that cannot be agreed at first instance.

What rights do you have if you are unmarried and medical issues happen?

You will not be treated as next of kin if your partner becomes ill. This means you will not have automatic rights to know about their condition or see them in hospital.

You will not necessarily be able to plan their care, make decisions on their behalf or have control over their finances if they lose mental capacity.

If you wish for a partner to make medical or financial decisions on your behalf, you can do this buy appointing them as a power of attorney. This can be done via a wills, trusts and probate solicitor.

Find out more on powers of attorney In our advice guide.

What are the legal rights of unmarried couples if one partner dies

Unmarried cohabiting couples have no automatic right of inheritance if their partner dies without a Will. Without a Will, one partner will not automatically inherit from the other. This is also true for any children they have where they are not the legal parent i.e. a stepchild.

They will only be able to make a claim through the Courts, and a solicitor can help you with this.

It is advised to make a valid Will with a wills, trusts and probate solicitor.

What steps can be taken to protect yourself if you are unmarried

Cohabitation Agreements

A cohabitation agreement is a document which allows unmarried couples to set out any financial rights and responsibilities for the following after a separation:

– Ownership of the house and how any equity is to be divided

– How certain possessions will be divided.

– Responsibilities for any debt.

– How savings will be distributed.

– Custody arrangements for any pets.

They can also set out any agreements for rent/mortgage payments on property. It will also outline any deposit contributions on property made during the relationship.

A cohabitation agreement can be made with a family law solicitor.

Find out more on cohabitation agreements in our advice article.

Making a Will

As unmarried couples have no inheritance rights to their partners estate, a professionally written Will naming your partner and children is needed to protect their families’ best interests. 

A professional Will can be written via a Will writing solicitor. Using a solicitor will ensure the Will is valid and reflects the best circumstances for both partners and children.

Making a Lasting Power of Attorney

A lasting power of attorney will assign the other partner as a power of attorney, allowing them to make decisions around medical treatment and finances if the other partner becomes incapacitated. You will not be able to access the other partners money or make any decisions on their behalf without a lasting power of attorney.

Our family law solicitors and wills, trusts and probate solicitors can help unmarried couples put protections in place. They can help with any disputes that arise of separation with unmarried couples, including finances and children matters. Our property and conveyancing solicitors can also support with any property matters, such as transfer of equity.

Our Family Law department offers a free 30-minute consultation, fixed fees where appropriate and flexible appointments to suit your needs.

You can email Howells to make an appointment at [email protected] or call us:

Sheffield: 0114 249 66 66

Barnsley: 0122 680 51 90

Rotherham: 0170 936 40 00