Unmarried Couples Rights Upon Separation

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 termed “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.

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 less rights and responsibilities than married couples or those in a civil partnership.

Do unmarried couples have the same rights as a married couple?

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 individual 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 virtue of 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.

Children

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

Financial obligations with regard to 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.

Can unmarried couples have a joint will?

A joint will – also known as a mirror will – is a will that essentially mirrors the provisions contained in another will.

Joint wills are often used by couples who want to ensure they are both provided for in the future.

They can be drafted by unmarried couples in the same way as their married counterparts.

However, it is more important for unmarried couples to both have a will in place, as they won’t automatically inherit any portion of their deceased partner’s estate.

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 forming a cohabitation agreement.

This type of agreement allows unmarried couples living together to clearly 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.