What To Consider When Separating As An Unmarried Couple

Whether you’re married or unmarried, the end of a relationship is a challenging time; emotions are running high and the thought of having to split up everything you’ve accumulated is incredibly stressful. Even more so if children are involved.

The first thing you should know if you are a cohabiting couple, i.e. not married, is that, unfortunately, you are not afforded the same rights under UK law as married couples. The notion of “common law spouses” no longer exists in the UK (in fact it hasn’t done since the 18th Century) and you do not have the same legal protection or responsibility to each other as married couples. It is a common myth that if couples have lived together for a certain number of years then they are classified as “common law married”, but this is not the case.

Cohabiting and Cohabitation Agreements

Cohabiting is essentially living together when not married or in a civil partnership. In these cases, it is advisable to enter into a cohabitation agreement at the time you move in together or any time during your relationship. A cohabitation agreement lays out what you and your partner would like to happen to assets, liabilities, property, children etc in the event of separation. It is a legal agreement and allows you to enter into a contract with the person with whom you are living and is designed to protect the rights of unmarried couples. Without an agreement such as this, there is a possibility that one party will end up with nothing.

Spousal Support and Child Support

When married couples divorce, the law allows for them to request spousal support.  This does not apply to unmarried couples as you have no legal responsibility to provide for your former partner in terms of financial support.

Child support, however, is a different matter. You may be able to come to an agreement in terms of living arrangements for children, which will split child care 50/50. In these cases, child maintenance is not usually required as both parents are sharing responsibility. However, if this is not the case, and you are unable to come to an agreement about maintenance between you, then the Government’s Child Maintenance Service will assist as parents have a legal financial responsibility for their children.

Parental Responsibility

If you are unmarried, then parental responsibility for the mother is automatic, but not for the father. There is only joint parental responsibility when the birth of a child is registered jointly, i.e. the father’s name is on the birth certificate, along with the mother’s.

Parental responsibility covers the rights and powers of parents for their children, as well as their obligations. Key responsibilities include providing a home for the child, and protecting and maintaining the child. Parental responsibility also includes a number of duties considered essential to the upbringing of the child and your role as a parent. These include a responsibility to discipline the child, choose and provide for the child’s education, agree to the child’s medical treatment, name the child and agree to any change of name, and look after the child’s property.

If you have joint parental responsibility then you will need to agree going forward on a variety of things. If you are unable to agree, then other legal steps can be taken.

A more important point to consider regarding parental responsibility is that if you don’t share parental responsibility and the other parent dies, the responsibility for that child does not automatically pass to you.

Property Rights of Cohabiting Couples

Generally, unmarried couples cannot lay claim to each other’s property when they separate. This covers everything from the house and car to the furniture and TV.

If one of the couple own the house, then the other partner would have to prove some interest in it in order to lay claim to any part of that property. For example, if they had made financial contributions to improve the property substantially, such as a new kitchen or an extension. In a situation such as this, where a couple have shown by behaviour and financial contribution over the years that their intention was for each of them to have some interest in the property, a trust can be deemed to have arisen. Both parties can benefit from a trust, even if only one is on the property deeds and if no agreement has been made in writing.

Property and trusts is one of the most complex areas of law within a breakup of an unmarried couple and the Court often has to become involved.

Rights Upon Death of Unmarried Couples

If your partner dies intestate (without a Will) you have no automatic right of inheritance. Under intestacy rules, unmarried partners do not benefit. There is, however, the facility to make a claim on the estate through the Inheritance (Provision For Family and Dependents) Act 1975. Making a claim is limited to being done within 6 months of the grant of probate being issued.

There are many factors that the Court will consider regarding a claim using this Act; from the value and nature of the estate to the financial resources and needs of the applicant. However, this would not usually be an award of the whole estate, which would be the case if a couple are married, where the estate automatically passes to the surviving spouse.

So, in summary, the best things to do if you are considering moving in with your partner, is to ensure you have a cohabitation agreement that covers everything outlined above and that you both have a Will and include each other within that as beneficiary of your shared assets. And, if you have children, ensure the father is jointly registered on the birth certificate.

If you are separating, then these factors need to be considered now and an agreement needs to be made as to what will happen regarding assets, property, liabilities and family.

If you are separating from your partner and need advice on your particular case, we offer a free 30 minute consultation to assess your situation and advise you of the appropriate route to take.

And, if you are considering moving in together and would like to ensure that your assets are covered, call us on Bingley 01274 723858, Ilkley 01943 601173 or Bradford 01274 735511.