Cohabiting Couples Separation Rights – What you need to know

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It is becoming increasingly common for couples to choose not to get married, however, there are no laws in place in England and Wales that protect the interests of cohabiting couples if the relationship was to break down.

Unfortunately many people are unaware of the lack of legal protection for unmarried cohabiting couples in the event of a separation, and only find out when its too late during the separation itself. It is worth noting, however, that there are laws in place regarding the breakup of a cohabiting family with children involved. This is because there is no difference in the eyes of the law between a married set of parents and a cohabiting set of parents when deciding on the placement of children following a separation.

If you are seeking legal advice and assistance surrounding cohabiting couples separation rights then please get in touch with Expert Family Law today to find out how our experienced family law solicitors can assist you.

What is a ‘common law’ marriage?

Contrary to popular belief, the idea called ‘common law’ marriage and ‘common law’ spouses do not exist and are not recognised in the eyes of the law in England and Wales. Simply put, if you are not married or are not civil partners then you do not have the same rights as a married couple even if you are living together as if you are married.

Ultimately this means that a relationship breakdown of an unmarried couple can have significant financial consequences, especially if one partner is more financially dependent on the other partner, as is the case with many women who take career breaks to look after children.

Similarly, assets such as properties are not split between the partners as they would be within a divorce, they would instead fall under the trust and land law.

What rights to do cohabiting couples have upon separation?

If the cohabiting couple both own their home and are joint tenants then they both legally have the right to remain living there until it is sold. However, if one party owns the home outright then the other party will have no legal right to live in the property following the separation. The non-owning cohabiting partner can however prove they had a beneficial interest in the property if they contributed toward mortgage payments or if there is proof of an intention to jointly own the property.

If there is no obvious or written evidence regarding the property and its payments then the court will instead look to each individual party’s actions and intentions. Simply put, the court is much more limited in the subject of financial provisions and financial support for cohabiting couples as opposed to the protections afforded to married couples.

In regards to pensions, unmarried couples have no legal right to either party’s pension unless they are named as a ‘nominated beneficiary’.

Couples living as unmarried partners have the same parental rights to children as married couples do, and financial contributions and obligations to the children will continue following a separation regardless of marital status. This may be an informal financial agreement between the parents or an order through the child maintenance service. Child living arrangements and agreeing on parental responsibility will also need to be dealt with following a couple’s separation if both parties are named on the child’s birth certificate.

If one partner dies in a cohabitating couple then the surviving partner will have no automatic right to their estate just because they were in a relationship. It will depend on the will of the deceased and if no provisions are made for the surviving partner in the will or there is no will at all then a claim may be made under the Inheritance (Provision for Family and Dependents) Act 1975.

What can you do to protect your assets as an unmarried couple?

Similarly to a pre-nuptial agreement for married couples, cohabiting couples can make a cohabitation agreement which sets out how property, bank accounts, child arrangements and other assets are to be divided in the event of a separation.

It is recommended to obtain the expert assistance of a family law solicitor prior to creating any such important document/agreement, as we can ensure the relevant information is included and that it has a full legal effect. An expert in family law could, for example, ensure that the appropriate declarations of trust are completed for any large shared assets.

A cohabitation agreement can make the process of separation much smoother during what will already be a difficult time. Without any written evidence a court will struggle to award provisions to a cohabiting party and as such, a previously written agreement is a responsible way to ensure both partners are protected.

How can Expert Family Law assist?

Our panel of family law solicitors are highly experienced in dealing with cohabiting couples separation rights and can effectively assist clients in both the drafting of important documents and representation at court hearings.

As well as assisting with cohabiting couples separation rights, our panel of family law solicitors can also advise and assist on the process of divorce and the division of assets following the breakdown of a marriage or civil partnership (ancillary relief).

Our team of leading family law specialists have many years of experience and expertise so you can have peace of mind that your legal matters will be dealt with professionally and with empathy. They will guide you through the legal process, helping you to make the difficult decisions in an understanding manner.

Get in touch with our family law team today using the form at the top of the page to find out if a family lawyer from a law firm on our panel could help on your case.

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