Unmarried Couples and Relationship Breakdown

Contrary to popular belief, there is no such thing as ‘common law spouses’ where unmarried couples are concerned. The rights of unmarried couples are notably different and inferior to those in a marriage or civil partnership.

Legal rights for unmarried couples

Unmarried couples who are looking to move in together and share their lives but are perhaps not ready or willing to marry or enter into a partnership need to understand the limits of their rights should the relationship come to an end, whether on separation or death.

What if your unmarried partner dies?

As in the case of a married couple, on the death of one partner in an unmarried couple, one of two scenarios will apply: (1) they die without leaving a Will, or (2) they die leaving a Will.

1. If the partner dies without leaving a Will, the surviving partner will not automatically inherit unless the property and assets were owned as ‘joint tenants’. Instead, their estate will pass under the intestacy rules. Unlike in the case of marriage, a surviving partner does not feature as one of the defined beneficiaries under these rules and will not receive anything.
2. If the partner dies leaving a Will, their estate will be administered in accordance with their Will.

In the case of a partner dying without leaving a Will, or leaving a Will which makes little or no provision for the surviving partner, the latter may be able to pursue a claim under the Inheritance (Provision for Family and Dependents) Act 1975 for reasonable financial provision.

In an application under the Inheritance (Provision for Family and Dependents) Act 1975, if the court concludes that reasonable financial provision has not been made then the judge can award the survivor some form of provision. That provision will, however, be limited to their maintenance needs only: the award they might receive is significantly less than the surviving spouse of a marriage or civil partnership can expect to receive.

For more information on this type of claim, please read our article: what inheritance rights do unmarried couples have?

Resolving Finances as an Unmarried Couple

When unmarried couples separate, the division of the assets can be particularly contentious. Unlike married couples, there is no automatic right to share the assets. And whereas married couples may apply to the dedicated Family Courts to divide their assets, separating unmarried couples are limited to court proceedings through the Civil Courts.

The biggest source of contention between unmarried couples is usually the property in which they lived, whether jointly owned, or in the name of one of the unmarried couple. There may of course be other assets of significant value owned by the unmarried couple, such as jointly owned business assets (where the couple were running a business together); holiday or investment properties; financial investments; or motor vehicles, to name but a few.

The Home or other properties

The starting point for the civil judge is to consider whether the property is in the name of one or both partners. A declaration of trust will usually be determinative as between the unmarried couple except in some very limited circumstances.

Where there is any ambiguity over how a property is owned, or in what proportions, the court can take account of:

• The intentions of the parties at the time the property was purchased
• The contributions of each of the parties towards its purchase
• The subsequent contributions towards its upkeep

If the cohabiting partners cannot agree on the proportions in which they own their home (or indeed other properties that are owned by one or both of them) it is possible for one or both to make a claim under Section 14 of Trust of Land and Appointment of Trustees Act 1996 (TOLATA) for a declaration as to their entitlements in relation to the property and/or for an order of sale.

For the court to award an interest or a greater interest in the property the applicant would need to establish either:

1. A ‘common intention constructive trust’, where there was a common intention that both partners in the unmarried couple would have a beneficial interest in the property, and that they acted to their detriment with the belief that by so acting, they would be acquiring that beneficial interest or increased beneficial interest.
2. They have acquired an interest in accordance with doctrine of Proprietary Estoppel, which allows the Court to award one of the partners an interest or increase in the property if it finds that representations were made (usually in the form of promises) by one partner to the other, and the latter reasonably relied on those representations and acted to their detriment.

Unmarried Couple with a Child

In the case of unmarried couples who have children together, one or other of the partners may have the ability to make a claim for greater financial provision on behalf of the child/children. This is possible by way of an application in accordance with Schedule 1 of the Children Act 1989 (“Schedule 1”). Applications under Schedule 1 are particularly relevant for unmarried parents or those not in a civil partnership.

Under Schedule 1 the Court can order:-

• Periodical payments to cover the child’s day-to-day living expenses. This can include a carer’s allowance for the primary caregiver;
• lump sum payments, which can be paid in one lump sum or by instalments and is usually used for specific needs such as education or housing (but not for costs of living); and
• settle property in a trust for the benefit of a child.

When considering an application under Schedule 1, the court will be looking at:

• The income, earning capacity, property and other financial resources of both parents; and
• The financial needs and welfare of the child, including any physical or mental disabilities and how the child was being and was expected to be educated.

The overall aim of the court in making an award under Schedule 1 is to ensure that the child or children are provided with a suitable standard of living by both parents. The provision will generally only be made for the duration that the children are under the age of 18 or are in full-time tertiary education.

Click here for details on how our dedicated team of children law specialists can assist if you are having problems over the custody of your children.

Expert separation advice

Establishing the interests of the parties on the separation of an unmarried couple can involve technical legal issues and arguments. Our team of specialist cohabitation solicitors, with years of experience helping clients through a separation, can help steer you through those complexities.

Our lawyers are empathetic and always focused on achieving the best outcome for you as quickly and cost-effectively as possible so that you can move on from what will inevitably be a very emotional and exhausting time. That may be through mediation or some other means of alternative dispute resolution.

If court proceedings are necessary, our lawyers are not only experts in the law, but also the Civil Procedure Rules and how these can be used to your best advantage.