Living together in a long-term relationship often feels just like being married. While sharing a home and finances and doing all the things married couples do, may feel the same, when it comes to the possibility of splitting up, cohabiting partners realize their legal rights are completely different.
Understanding your legal position on dividing a family home, your rights and responsibilities towards your children, and other financial factors such as pensions, debts, and bank accounts will help you make the best decisions when you separate from your partner.
In this article, we study the legal rights of unmarried couples and explore the key issues.
What is separation under common law marriage?
Although it sounds official, common-law marriage is a fallacy.
If you are not married but living with your partner, you may refer to yourself as being in a common-law marriage, but legally, there is no protection for either party, and neither party has a legal responsibility to the other.
Separation under common law marriage differs from separating couples who are married or in civil partnerships where legal claims such as financial, property, and maintenance can be made.
If you are married or in a civil partnership and have decided to split up, you may be able to make a claim for a share of the home or property you lived in with your former partner. When you live together without marriage, there is no automatic right to make such a claim.
If the property is in the sole name of your partner, you need to clearly demonstrate that you made a financial contribution to it; for example, you paid for the energy bills, the council tax, or the mortgage repayments or renovation work in the home.
Alternatively, you would need evidence that you had an agreement in place where you shared a portion of the home. This can often be challenging.
If the home is in joint names, you are considered a co-owner, something which is decided and agreed upon at the point of purchase.
Joint tenants are entitled to an equal share if they separate, irrespective of how much each party contributed. In addition, if one party passes away, the other automatically gains full ownership.
Tenants in common are each entitled to their own share of the property if they separate. This could be an equal or unequal share and could depend on the financial contribution each has made. A share of the property may be left to anyone you specify in your will in the event of death.
If there is conflict on how the property should be split, it’s possible to apply to the courts to determine who should stay in the property or how it should be divided.
Children during the separation of unmarried couples
Cohabiting couples have the same financial and legal responsibilities and rights regarding their children as married couples do.
While it’s advisable for couples to reach agreements on maintenance and living arrangements without the courts’ input, when they cannot agree or there are other complexities involved, the case can be taken up legally.
In some cases, the courts will be able to make legal orders in terms of property and finances in relation to the benefits of a dependent child. Some separating couples choose to use the child maintenance service to determine the amount and frequency of payments towards children.
It’s also important to highlight that unmarried fathers do not automatically gain parental responsibility, a term that relates to the legal duties and responsibilities of a child’s upbringing.
While a mother automatically has parental responsibility from a child’s birth, unmarried fathers can obtain PR through either a joint agreement with the mother, a court order, or by registering the birth jointly with the mother.
Financial issues unmarried couples should consider
The legal rights of unmarried couples in relation to finances are crucial to understand. In addition to property and children, there are a number of other financial considerations to make if you separate, including
One of the legal issues when an unmarried couple breaks up is related to pensions.
If you are not married to your partner, you will not have an automatic right to a share of their pension if you split up unless you have been named as a nominated beneficiary (a chosen recipient). It is also the case if the partner with the pension dies.
If the surviving partner wanted to make a claim for a share of the pension, there are a number of requirements under the Inheritance Act 1975. For example, they would need to prove that they had been living together for a two-year period up until the death of their partner.
What are the legal rights of unmarried couples living together in relation to mutual debts?
If, when you separate, you have a joint loan in both names, for example, a personal loan, mortgage, or overdraft, then even if one partner stops paying, the other will still be liable for the full loan.
However, if your ex-partner is an additional cardholder, they are not responsible for paying back the money owed on it as the credit arrangement is only in the name of the main cardholder.
If you have a joint account in both names, any money in it belongs to each party equally.
It’s advisable to let your bank know as soon as possible that you have separated so they can either freeze it or arrange new terms, which both parties have to agree on before the money is withdrawn.
If one of the partners dies, then the other may still use the joint account and withdraw from it, although it is possible that these funds may be included in the estate of the person who has died.
What can you do?
If you and your partner live together but are not married, consider a cohabitation agreement where details on financial assets, property division, and child arrangements are clearly stipulated.
You may also consider changing your will to specify what should happen to your estate in the event of your death.
Gaining a Declaration of Trust is another option to consider. This document notes how the proceeds of a property sale should be distributed and outlines ownership. In all cases, it’s advisable to be clear on your legal position and seek specialist legal advice as early on in the process as possible.
If you are in a situation where you are facing difficulties in ending a relationship, watch this video:
Before separating, some unmarried couples assume they have rights and responsibilities.
For instance, they may believe they have a legal right to property or pension, assume property will be left to them when their former partner dies, or believe they have automatic parental responsibility.
It can often only be during the midst of separating that the reality becomes clearer. It’s, therefore, important to seek the advice of a family lawyer as early on in the process as possible.
Joanne Major established Major Family Law in 2009 which has grown to be one of the leading specialist family law practices in the UK. Joanne has over 25 years’ legal experience and is listed by The Legal 500 has a ‘Leading Read more Individual’ as well as featuring in the coveted Legal 500 ‘Hall of Fame’.
Want to have a happier, healthier marriage?
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