Rights For Unmarried Couples Upon Separation Explained

A cohabiting couple is simply an unmarried couple who lives together. The number of couples now living together without getting married or entering a civil partnership has increased from around 1.5 million in 1996 to around 3.5 million in 2020.

That’s an increase of 137% and cohabiting couples now represent 1 in 5 of all couples that live together. Although cohabitation is common practice, there is still confusion about the legal rights and responsibilities of cohabiting compared to marriage in England and Wales.

Cohabitating couples do have the same legal protection in areas such as domestic abuse.

But when it comes to cohabitation rights upon separation, it gives no legal status to a couple in the same way as it does in a marriage or civil partnership when it comes to financial matters.

Sadly, many people are still unaware of this, so we aim to discuss unmarried couples’ rights upon separation in more detail, while also dispelling the myths of common-law marriage.

The only way unmarried couples can protect themselves financially when moving in with their partner is to enter into a cohabitation agreement.

What is a common-law partner in the UK?

There is no such thing as a “Common Law Partner” in England or Wales.

Many people wrongly assume that the long-term cohabitation of unmarried couples will eventually gain them some of the legal rights afforded to their married counterparts, as it does in other parts of the UK.

This mythical concept is called “Common Law Marriage” and it still confounds many cohabiting couples when they separate and discover the facts.

Even in the case of unmarried couples who spend their entire lives under the same roof and raise a family together, they do not gain the protections or legal status conferred by marriage or civil partnership.

The common law myth can cause issues for couples upon separation, which is why it’s important to understand your rights, especially if you’re moving in with a partner who owns a house.

Common law partner rights in Scotland

In Scotland, cohabitants can make limited claims against each other when they separate or if a partner dies.

Common law partner rights in Northern Ireland

In Northern Ireland, cohabitants do have legal protection in some areas, but they have fewer rights and responsibilities than married couples or those in a civil partnership.

Do unmarried couples have the same rights as married couples?

No, unmarried couples do not share the rights, responsibilities, protections, or status held by married couples. This is the case whether or not they live together.

Cohabiting couples retain their assets when they separate irrespective of the financial situation of either party.

This is in stark contrast to married couples who need to add most of their assets to the “matrimonial pot” and divide them upon divorce, with the starting point being a 50:50 share.

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

If one partner of an unmarried couple dies, their surviving partner does not automatically inherit a portion of their estate by having been their partner.

Instead, the instructions contained in the will of the deceased will determine how their estate is apportioned.

In the absence of a provision in the will, the surviving partner may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Under this legislation, they might be able to claim a portion of the estate if:

• the couple had been living in the same household as if they were a married couple for a period of two years prior to the date of death; or
• the surviving partner had been maintained by the deceased and no proper provision had been made for them.

NB: The government is planning to extend Widowed Parent’s Allowance and Bereavement Support Payments to surviving cohabiting partners with children who were living with their partner at the time of death.

What rights do unmarried couples have upon separation?

Property

If an unmarried cohabiting couple jointly owns their home, they will both be entitled to continue living in the property after separation until they sell it. They will retain their respective share of the equity.

If the property in which they lived is owned outright by one party, their former partner will have no automatic right to any share of the equity.

However, the non-owner can argue that they have a beneficial interest in the property if (i) they made regular contributions to mortgage payments and (ii) there was an intention to share ownership of the property.

Cohabitation lawyers often emphasise the importance of securing a cohabitation agreement when buying a property with a partner as they can help avoid disputes in the future, saving you thousands in legal fees.

Children

Unmarried couples who have children have the same parental rights and responsibilities as married parents.

Financial obligations concerning the upkeep of children will continue after the breakdown of a relationship, irrespective of whether it is a divorce or the separation of a cohabiting couple.

Pensions

In general, unmarried couples have no right to benefit from their partner’s pension, unless they are named formally as a “nominated beneficiary”.

There is currently an exception to this rule in respect of the Local Government Pension Scheme in England, Wales and Scotland.

What is the Cohabitation Rights Bill 2020?

The Cohabitation Rights Bill (Last updated: 5 May 2021) could change the situation regarding the legal rights of unmarried couples if it ever becomes law.

It aims to establish a framework of rights and responsibilities for cohabitating couples who either have a dependent child or have been living together for a minimum of 3 years.

Key points include the right to:

• inherit their partner’s estate under the intestacy rules
• apply to a court for a financial settlement order upon the breakdown of the relationship
• have an insurable interest in the life of their partner

However, this is a private members’ bill and is therefore unlikely to progress beyond parliamentary debate.

Why unmarried couples living together should consider a cohabitation agreement

Since unmarried couples lack many of the rights and protections afforded to married couples, they should consider getting advice from cohabitation solicitors.

This type of agreement allows unmarried couples living together to set out their intentions regarding the division of finances and assets upon separation.

A cohabitation agreement is a legally binding contract that can be enforced in court.

Whilst you can’t draft your own cohabitation agreement, our low-cost service can help give you peace of mind for a fraction of the cost of local solicitors firms.